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Full text of "North Carolina Register v.13 no. 9 (11/2/1998)"



NORTH CAROLINA 






REGISTER 



VOLUME 13 • ISSUE 9 • Pages 753 - 802 



November 2, 1998 



IN THIS ISSUE 

Executive Order 

Labor - Verbatim Adoptions of Federal Standards 

Voting Rights Letters 

Administrative Hearings, Office of 

Cosmetic Art Examiners 

Environment and Natural Resources 

Health and Human Services 

Revenue 

Secretary of State 

State Personnel, Office oi 

Rules Review Commission 

Contested Case Decisions 



PUBLISHED BY 

The Office of Administrative Hearings 

Rules Division 

PO Drawer 27447 

Raleigh, NC 2 7611- 744 7 

Telephone (919) 733-2678 

Fax (919) 733-3462 



RECEIVED 

NOV 2 1998 

KATHRINE R. EVERETT 
LAW LIBRARY 



This publication is printed on permanent, acid-free paper in compliance with G.S. 125- 11.13 



For those persons that have questions or concerns regarding the Administrative Procedure Act or any of jj 
components, consult with the agencies below. The bolded headings are typical issues which the givi 
agency can address, but are not inclusive. 



I 



Rule Notices, Filings, Register, Deadlines, Copies of Proposed Rules, etc. 

Office of Administrative Hearings 

Rules Division 

Capehart-Crocker House (919) 733-2678 

424 North Blount Street (9 1 9) 733-3462 FAX 

Raleigh, North Carolina 27601-2817 



contact: Molly Masich, Director APA Services 
Ruby Creech. Publications Coordinator 



mmasich@oah.state.nc.us 
rcreech@oah.state.nc.us 



Fiscal Notes & Economic Analysis 

Office of State Budget and Management 

116 West Jones Street 

Raleigh. North Carolina 27603-8005 

contact: Mark Sisak, Economist III 



(919)733-7061 
(919) 733-0640 FAX 

msisak@osbm.state.nc.us 



Rule Review and Legal Issues 

Rules Review Commission 
1307 Glenwood Ave., Suite 159 
Raleigh. North Carolina 27605 

contact: Joe DeLuca Jr., Staff Director Counsel 
Bobby Bryan, Staff Attorney 



(919)733-2721 
(919) 733-9415 FAX 



♦ 



Legislative Process Concerning Rule-making 

Joint Legislative Administrative Procedure Oversight Committee 

545 Legislative Office Building 

300 North Salisbury Street (919) 733-2578 

Raleigh, North Carolina 2761 1 (919) 715-5460 FAX 



contact: Mary Shuping, Staff Liaison 



marys@ms.ncga.state.nc.us 



County and Municipality Government Questions or Notification 

NC Association of County Commissioners 

2 1 5 North Dawson Street' (9 1 9) 7 1 5-2893 

Raleigh, North Carolina 27603 

contact: Jim Blackburn or Rebecca Troutman 



NC League of Municipalities 
215 North Dawson Street 
Raleigh, North Carolina 27603 

contact: Paula Thomas 



(919)715-4000 



This publication is printed on permanent, acid-free paper in compliance with G.S. 125-1 1.13 



NORTH CAROLINA 
REGISTER 




ii. 



in. 



IN THIS ISSUE 



EXECUTIVE ORDERS 

Executive Order No. 140 



753 - 754 



IN ADDITION 
Labor 

Verbatim Adoptions of Federal Standards 
Voting Rights Letters 



755 

756 - 758 



RULE-MAKING PROCEEDINGS 

Secretary of State 

N.C. Electronic Commerce Act 



759 



Volume 13, Issue 9 
Pages 753 - 802 



November 2, 1998 



This issue contains documents officially filed 
through October 12. 1998. 



Office of Administrative Hearings 

Rules Division 

424 North Blount Street (27601 ) 

PO Drawer 27447 

Raleigh. NC 276 11 -7447 

(919)733-2678 

FAX (919) 733-3462 



Julian Mann III. Director 

Camille Winston. Deputy Director 

Molly Masich. Director of APA Services 

Ruby Creech. Publications Coordinator 

Jean Shirley, Editorial Assistant 

Linda Dupree. Editorial Assistant 

Jessica Flowers. Editorial Assistant 



IV. PROPOSED RULES 

Environment and Natural Resources 

Sedimentation Control Commission 760 

Revenue 

Corporate Income & Franchise Tax 760 - 762 

Individual Income Tax 762 - 767 

Sales and Use Tax 767 - 773 

State Personnel, Office of 
State Personnel Commission 773 - 778 

V. APPROVED RULES 779-786 

Administrative Hearings, Office of 

Civil Rights Division 
Environment and Natural Resources 

Environmental Health Services 

Wildlife Resources 
Health and Human Services 

Governor Morehead School 

Medical Assistance 

Mental Health: General 

Social Services 
Licensing Boards 

Cosmetic Art Examiners 



VI. RULES REVIEW COMMISSION 788-790 

VII. CONTESTED CASE DECISIONS 

Index to ALJ Decisions 791-796 

Text of Selected Decisions 
98 EHR 0322 797-803 

VIII. CUMULATIVE INDEX 1-74 



Xorth Carolina Register is published semi-monthh for $195 per \ ear b\ the Office of Administrative Hearings. 424 North Blount Street. Raleigh. NC 
27601. (ISSN 15200604) to mail at Periodicals Rates is paid at Raleigh. NC. POSTMASTER : Send Address changes to the North Carolina Register. 
PO Drawer 27447. Raleigh. NC 2761 1-7447 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



The North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, titles and chapters, 
are mandatory. The major subdivision of the NCAC is the title. Each major department in the North Carolina executive 
branch of government has been assigned a title number. Titles are further broken down into chapters which shall be 
numerical in order. The other two, subchapters and sections are optional subdivisions to be used by agencies when 
appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 



TITLE 



DEPARTMENT 



LICENSING BOARDS 



CHAPTER 



1 


Administration 


Acupuncture 


1 


2 


Agriculture 


Architecture 


2 


3 


Auditor 


Athletic Trainer Examiners 


3 


4 


Commerce 


Auctioneers 


4 


5 


Correction 


Barber Examiners 


6 


6 


Council of State 


Certified Public Accountant Examiners 


8 


7 


Cultural Resources 


Chiropractic Examiners 


10 


8 


Elections 


Employee Assistance Professionals 


11 


9 


Governor 


General Contractors 


12 


10 


Health and Human Sen ices 


Cosmetic Art Examiners 


14 


11 


Insurance 


Dental Examiners 


16 


12 


Justice 


Dietetics "Nutrition 


17 


13 


Labor 


Electrical Contractors 


18 


14A 


Crime Control & Public Safety 


Electrolysis 


19 


15A 


Environment and Natural 


Foresters 


20 




Resources 


Geologists 


21 


16 


Public Education 


Hearing Aid Dealers and Fitters 


22 


17 


Revenue 


Landscape Architects 


26 


IX 


Secretary of State 


Landscape Contractors 


28 


19A 


Transportation 


Marital and Family Therapy 


31 


2(1 


Treasurer 


Medical Examiners 


32 


*21 


Occupational Licensing Boards 


Midwifery Joint Committee 


33 


">"> 


Administrative Procedures 


Mortuary Science 


34 


23 


Community Colleges 


Nursing 


36 


24 


Independent Agencies 


Nursing Home Administrators 


37 


25 


State Personnel 


Occupational Therapists 


38 


26 


Administratis e Hearings 


Opticians 


40 


27 


NC State Bar 


Optometry 


42 






Osteopathic Examination & Reg. (Repealed) 


44 






Pastoral Counselors. Fee-Based Practicing 


45 






Pharmacy 


46 






Physical Therapy Examiners 


48 






Plumbing. Heating & Fire Sprinkler Contractors 


50 






Podiatry Examiners 


52 






Professional Counselors 


53 






Psychology Board 


54 






Professional Engineers & Land Surveyors 


56 






Real Estate Appraisal Board 


57 






Real Estate Commission 


58 






Refrigeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work Certification 


63 






Soil Scientists 


69 






Speech & Language Pathologists & Audiologists 


64 






Substance Abuse Professionals 


68 






Therapeutic Recreation Certification 


65 






Veterinan Medical Board 


66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 



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EXECUTIVE ORDERS 



health data in North Carolina. 

C. Members of the Council shall be reimbursed for 
necessary travel and subsistence expenses as authorized 
under state law and in accordance with state policies and 
procedures. Funds for such expenses shall be made 
available from funds provided by the grant from the 
Robert Wood Johnson Foundation. 

D. The continuation of this Executive Order, or any renewal 
or extension thereof, is dependent upon and subject to the 
availability of funds for the purposes set forth herein. 
( See North Carolina General Statutes §143-34.2.) 

This Executive Order is effective immediately. f 

_ i 
Done in Raleigh. North Carolina this 29" 1 day of September. 
1998. 



\ 



754 NORTH CAROLINA REGISTER November 2, 1998 13:9 



IN ADDITION 



This Section contains public notices that are required to he published in the Register or hcn-e been approved by the Codijier 
of Rules for publication. 



North Carolina Department of Labor 
Division of Occupational Safety and Health 



NOTICE OF VERBATIM ADOPTIONS 
OF FEDERAL STANDARDS 

The following is a summary of federal OSHA standards recently adopted verbatim by the Division of Occupational Safety and Health. 
The details are contained in the cited Federal Registers (FR). The effective date of the associated AC Administrative Code rule 
changes is October 8. 1998: 

(1) Methylene Chloride — Amendments to Final Rule (63 FR 50711-50732, 9/22/98) : These amendments add a provision 
for temporary medical removal protection benefits of employees who use or are exposed to methylene chloride and changes 
the start-up dates for achieving permissible exposure limits using engineering controls. 

(2) Asbestos — Revision (63 FR 35137-35138, 6/29/98) : With these revisions, asbestos-containing roofing cements, mastics 
and coatings are no longer regulated bv the shipvard asbestos (29 CFR 1915.1001) and construction asbestos (29 CFR 
1926.1101) standards. 

(3) Standards Improvements for General Industry and Construction Standards (63 FR 33449-33469, 6/18/98) : These 
amendments correct or eliminate provisions of certain standards that are out of date, duplicative, unnecessary, or 
inconsistent. 

(4) Respiratory Protection — Corrections (63 FR 20098-20099. 4/23/98) : The Respiratory Protection Final Rule (63 FR 
1 152 et sec/.. 1 8 98). adopted by OSHNC on 4'8 98. is corrected to maintain the provisions of the previous standard until 
the final compliance date (10/5/98) of the new standard. The remaining changes correct typographical and technical errors. 

(5) Collection of Information — Approvals and Renewals (63 FR 17093-17094) : These approvals and renewals are 
associated with the following standards: 

(a) noise (f) asbestos in construction 

(b) access to employee exposure and medical records (g) formaldehyde 

(c) lead in general industry (h) bloodbome pathogens 

(d) ionizing radiation (i) lead in construction 

(e) asbestos in general industry (j) asbestos in shipyards 

For additional information regarding these adoptions please contact: 

Peggv D. Morris 

Division of Occupational Safety and Health 

319 Chapanoke Road 

Raleigh. NC 27603-3432 

(919)662-4581 

pmorris 5 mail. dol. state. nc. us 



13:9 NORTH CAROLINA REGISTER November 2, 1998 755 



IN ADDITION 



U.S. Department of Justice 
Civil Rights Dnision 



EJ:DHH:JPC:jng 
DJ 166-012-3 
98-2288 



I bting Section 
PO Box 66128 
Washington D.C. 20035-6128 



August 28, 1998 



Michael Crow ell. Esq. 
Tharrington Smith. L.L.P. 
P.O.Box 1151 
Raleieh. North Carolina 27602- 



[51 



Dear Mr. Crowell: 

This refers to the procedures for conducting the September 15. 1998. special election to fill a school board vacancy for 
the Northampton Counts School District in Northampton County North Carolina, submitted to the Attorney General pursuant xa 
Section 5 of the Voting Rights Act. 42 U.S.C. 1973c. We received your submission on July 1. 1998. 

The Attorney General does not interpose any objection to the specified change. However, we note that Section 5 
expressly provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of | 
the change. See the Procedures for the Administration of Section 5 (28 C.F.R. 5 1 .4 1 ). 

Please be ad\ ised that our facilities are inadequate to process large numbers of submissions transmitted through the 
facsimile process. Therefore, this method of submitting voting changes should be employed only in unusual situations following 
consultation with the Voting Section. We urge you to forward future submissions to the following address for delivery by the | 
United States Postal Service: Chief. Voting Section. Civil Rights Division. P.O. Box 66128. Washington. D.C. 20035-6128. 
Submissions to be delivered by commercial express service companies should be addressed as follows: Chief. Voting Section. 
Civil Rights Division. HOLC Building. Room 818A. 320 First Street. N.W.. Washington. D.C. 20001. In either case the en\ elope 
and first page should be marked: Submission under Section 5 of the Voting Rights Act. 



Sincerely, 



Elizabeth Johnson 
Chief. Votina Section 



756 



NORTH CAROLINA REGISTER 



November!, 1998 



13:9 



IN ADDITION 



U.S. Department of Justice 
Civil Riahts Division 



EJ:DHH:JAC:emr Voting Section 

DJ 1 66-0 1 2-3 PO Box 66128 

98-2542 Washington. DC. 20035-6128 



September 22. 1998 



Jesse L. Warren, Esq. 

City Attorney 

P.O. Box 3 136 

Greensboro. North Carolina 27402-3136 

Dear Mr. Warren: 

This refers to the annexation (Ordinance No. 98-100) to the City of Greensboro in Guilford County, North Carolina, 
submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act. 42 U.S.C. 1973c. We received your submission 
on July 28. 1998. 

The Attorney General does not interpose any objection to the specified change. However, we note that Section 5 
expressly provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of 
the change. See the Procedures for the Administration of Section 5 (28 C.F.R. 5 1 .4 1 ). 

Please be advised that it is unnecessary to provide multiple copies of documents when making a Section 5 submission. 

Sincerely, 



Elizabeth Johnson 
Chief Voting Section 



13:9 NORTH CAROLINA REGISTER November 2, 1998 757 



IN ADDITION 



U.S. Department of Justice 
Civil Rights Division 



EJ:VLO:K.IF:par Voting Section 

DJ 1 66-0 1 2-3 PO Box 66128 

98-2551 Washington. D.C. 20035-612* 

98-2708 



September 25. 1998 



David A. Holec. Esq. 

City Attorney 

P.O. Box 7207 

Greenville. North Carolina 27835-7207 



Dear Mr. Holec: 

This refers to the seven annexations (Ordinance Nos. 53. 54. 60. 61. 62. 63. and 64 (1998)). and their designation to 
districts for the City of Greenville in Pitt County. North Carolina, submitted to the Attorney General pursuant to Section 5 of the 
Voting Rights Act. 42 U.S.C. 1973c. We received your submissions on July 27 and August 1 1. 1998. 

The Attorne\ General does not interpose am objection to the specified changes. However, we note that Section 5 
expressly provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of 
the changes. See the Procedures for the Administration of Section 5 (28 C.F.R. 5 1 .4 1 ). 

Sincerelv. 



Elizabeth Johnson 
Chief. Voting Section 



< 



7 5# NORTH CAROLINA REGISTER November 2. 1998 13:9 



RULE-MAKING PROCEEDINGS 



A Notice of Rule-making Proceedings is a statement of subject matter of the agency's proposed rule making. The agency 
must publish a notice of the subject matter for public comment at least 60 da\s prior to publishing the proposed text of a 
rule. Publication of a temporary rule serves as a Notice of Rule-making Proceedings and can be found in the Register under 
the section heading of Temporary Rules. A Rule-making Agenda published by an agency serves as Rule-making 
Proceedings and can be found in the Register under the section heading of Rule-making Agendas. Statutoiy reference: G.S. 
150B-21.2. 



TITLE 18 - SECRETARY OF STATE 

7V Totice of Rule-making Proceedings is hereby given by the Secretaiy of State in accordance with G.S. 1 50B-21.2. The agency 
J. V shall subsequently publish in the Register the text of the rule(s) it proposes to adopt as a result of this notice of rule-making 
proceedings and any comments received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: None - Other rules may- be proposed in the course of the rule 
making process. 

Authority for the rule-making: G.S. 66-58.10 

Statement of the Subject Matter: Notice is hereby given in accordance with G.S. 150B-21.2 that the Secretaiy of State 
(Secretary) will consider adopting rules enabling administration of the North Carolina Electronic Commerce Act, G.S. 66-58.1 et 
seq. These rides may include, but are not limited to. definitions: the creation, accreditation, bonding, licensing, operation, 
regulation and sanctioning of certification authorities: the imposition of licensing and renewal fees: and the imposition of civil 
monetaiy penalties for noncompliance with Article 11 A of Chapter 66 of the General Statutes or the rules promulgated 
thereunder. 

Reason for Proposed Action: To enable administration of this North Carolina Electronic Commerce Act. G.S. 66-58.1 et seq. 

1. To enact requirements regarding the creation, accreditation, bonding, licensing, operation, regulation and sanctioning of 
certification authorities. 

2. To enact rules regulating the use of electronic signatures. 

3. To enact rule relating to the assessment of civil penalties for violations of Article 11 A of Chapter 66 of the General Statues and 
the rules promulgated thereunder. 

4. To establish licensing and renewal fees. 

Comment Procedures: The Department requests that persons interested in this rulemaking participate, if possible, in the 
Department's Internet-linked rulemaking project. This site is accessible from the Department's homepage, at 
M-ww.state.nc.us secstate. Written comments may also be submitted on the subject matter of the proposed rule-making to Scott 
Templeton. Deputy Secretaiy of State. North Carolina Department of the Secretaiy of State. 300 North Salisbuiy Street. Raleigh. 
North Carolina 2 "603-5909. 



13:9 NORTH CAROLINA REGISTER November 2, 1998 759 



PROPOSED RULES 



This Section contains the text of proposed rules. At least 60 days prior to the publication of text, the agency published 
a Notice of Rule-making Proceedings. The agency must accept comments on the proposed rule for at least 30 days from 
the publication date, or until the public hearing, or a later date if specified in the notice by the agency. The required 
comment period is 60 days for a rule that has a substantial economic impact of at least five million dollars 
(S5.000.000). Statutory reference: G.S. 150B-21.2. 



TITLE ISA - DEPARTMENT OF ENVIRONMENT 
AND NATURAL RESOURCES 

Notice is hereby given in accordance with G.S. 1 50B-21 .2 
that the Sedimentation Control Commission intends to 
amend the rules cited as 15A NCAC 4B .0106-010'. .012'. 
Notice of Rule-making Proceedings was published in the 
Register on April 15. 1998. 

Proposed Effective Date: April 1. 1999 

A Public Hearing will be conducted at 7 :00 p.m. on 
November IS. 1998 at the Archdale Building, Ground Floor 
Hearing Room, 512 N. Salisbury Street, Raleigh, NC. 

Reason for Proposed Action: This action is necessaiy to 
comply with the Action Plan adopted by the North Carolina 
Sedimentation Control Commission on November 19. 199'. 
The Action Plan was developed as an effort to better control 
sedimentation damage. 

Comment Procedures: Comments will be accepted through 
December 2, 1998. Mailed comments may be sent to F. Me! I 
Nevils. DENR, Division of Land Resources, PO Box 2'68~, 
Raleigh. NC 27611. 

Fiscal Note: These Rules do not affect the expenditures or 
revenues of state or local government funds. These Rules do 
not have a substantial economic impact of at least five million 
dollars (S 5, 000, 000) in a 12-month period. 

CHAPTER 4 - SEDIMENTATION CONTROL 

SUBCHAPTER 4B - EROSION AND SEDIMENT 
CONTROL 

SECTION .0100 - EROSION AND SEDIMENT 
CONTROL 

.0106 BASIC CONTROL OBJECTIVES 

An erosion and sedimentation control plan may be 
disapproved pursuant to 15A NCAC 4B t00+8 .0118 if the 
plan fails to address the following control objectives: 

( 1 ) Identify Critical Areas: Identify site areas subject to 
severe erosion, and off-site areas especially 
vulnerable to damage from erosion and 
sedimentation. 

(2) Limit Exposed Areas. Limit the size of the area 
exposed at any one time. 

(3) Limit Time of Exposure. Limit exposure to the 
shortest feasible time. 



(4) Control Surface Water. Control surface water run- 
off originating upgrade of exposed areas in order to 
reduce erosion and sediment loss during exposure. 

(5) Control Sedimentation. All land-disturbing activity 
is to be planned and conducted so as to prevent off- 
site sedimentation damage. 

(6) Manage Storm Water Runoff. When the increased 
velocity of storm water runoff resulting from a land- 
disturbing activity causes accelerated erosion of the 
receiving watercourse, plans shall include measures 
to control the velocity to the point of discharge. 

(7) When deemed necessary bv the approving authority 
a preconstruction conference mav be required. 

Authority G.S. U3A-54(d)(4); 113A-54.1. 

.0107 MANDATORY STANDARDS FOR 
LAND-DISTURBING ACTIVITY 

(a) No land-disturbing activity subject to this article shall be 
undertaken except in accordance with the G.S. 1 3A-57. 

(b) Pursuant to G.S. 113A-57(3). provisions for a ground 
cover sufficient to restrain erosion must be accomplished 
within 34} J_5 working days or 4^4} 90 calendar days following 
completion of construction or development, whichever period 
is shorter, except as provided in 15A NCAC 4B .002 4 ( e ). 
.0124(e). 

(c) Pursuant to G.S. 113A-57(4) and 1 13A-54(d)(4), an 
erosion and sedimentation control plan must be both filed and 
approved by the agency having jurisdiction. 

Authority G.S U3A-54(d)(4); 113A-57; U3A-57(3)(4). 

.0127 PLAN APPROVAL CERTIFICATE 

(a) Approval of a sedimentation and erosion control plan 
will be contained in a document called "Certificate of Plan 
Approval" to be issued by the Commission. 

(b) The Certificate of Plan Approval must be posted at the 
primary entrance of the job site before construction begins. 

(c) No person ma\ initiate a land-disturbing activity until 
notifying the agency that issued the Plan Approval of the date 
that the land-disturbing activity will begin. 

Authority G.S. U3A-54(b). 



TITLE 17 - DEPARTMENT OF REVENUE 



Notice is hereby given that the Department of Revenue t 
intends to amend rules cited as 1' NCAC 5B .010'. " 
.1105; 17 NCAC 5C .0703, .2004. .2101; and repeal rule 
cited as 1 ' NCA C5C.21 02. 



760 



NORTH CAROLINA REGISTER 



November 2, 1998 



13:9 



PROPOSED RULES 



Editor's Note: G.S. 150B-l(d)(4) exempts the Department of 
Revenue from Part 2 Article 2A of Chapter 150 with respect to 
the notice and hearing requirements. The Department will 
however publish the text of proposed rides in the North 
Carolina Register prior to the scheduled time of review by the 
Rules Review Commission. 

Proposed Effective Date: July 1. 1999 

Instructions on How to Demand a Public Hearing (must be 
requested in writing within 15 days of notice): A person may 
request a public hearing by sending a written request for a 
hearing to Mr. Jack Harper, Corporate. Excise, and Insurance 
Tax Division. P.O. Box 871. Raleigh. NC 27602. by 
November 19. 1998. Notice of any public hearing scheduled 
on these proposed Rules will be published in the Register. 

Reason for Proposed Action: / 7 NCAC 5 B .0107 - This ride 
is amended to eliminate duplication between it and 17 NCAC 
5C .2004. The requirements for obtaining an extension for 
filing franchise tax are the same as for corporate income tax. 
17 NCAC SB .1105 - The current rule implies that investment 
in a domestice subsidiary can be deducted, which is not the 
case and would be discriminatory if it were. The rule is 
amended to eliminate this erroneous implication. 
1 7 NCAC 5C .0703 - The rule categorizes all dividend income 
received by a company that does not deal in securities as 
nonbusiness income. This conflicts with the position the 
Department has followed since the Secretary's Hearing 
Decision, docket number 95-144. 

17 NCAC 5C. 2004 - Chapter 300 of the 199' Session Lcnvs 
deleted the requirement that tax due be pjid to received an 
extension. This change reflects the change made by that law. 
17 NCAC 5C. 2101 - The rule is amended to consolidate it 
with 17 NCAC 5C .2102. to delete parts that repeat the 
statutes, and to delete obsolete information. 
17 NCAC 5C .2102 - This rule is being repealed because its 
context is being moved to 17 NCA C 5C .2101. 

Comment Procedures: Written comments may be submitted 
to Mr. Jack Harper at North Carolina Department of Revenue. 
Corporate. Excise and Insurance Tax Division. PO Box 871, 
Raleigh, NC 27602. Comments received will be taken into 
consideration in adopting the permanent rule. If you have 
questions, you may call Mr. Harper at (919) '33-8484. 

CHAPTER 5 - CORPORATE INCOME AND 
FRANCHISE TAX DIVISION 

SUBCHAPTER 5B - FRANCHISE TAX 

SECTION .0100 - GENERAL INFORMATION 

.0107 EXTENSION OF FILING DATE 

(*) — Prior to the regular du e dat e , a corporation may apply 
for an e xt e nsion of tim e for fi l ing it s r e turn. An e xt e nsion of 



tim e to fil e th e franchise and incom e tax r e turn may be granted 
for s e ven month s providing th e full amount of franchise tax 
and incom e tax anticipat e d to b e du e is paid with th e tim e ly 
fil e d e xtension application. — The exten s ion will b e grant e d 
automatically provid e d: 

f-H th e total tax is r e mitt e d with th e application form; 

(3} — the — corporation's — records — r e fl e ct — ne — d e linqu e nt 
r e turns or outstanding tax liability. 

(b) Form CD 110 is th e application for ext e nsion form that 
must b e fil e d b e for e an e xt e n s ion of tim e to fil e the r e turn can 
b e grant e d. — Th e application shall b e compl e t e d in duplicate. 
Int e r es t is charg e d on all e xt e nd e d tax paym e nts at th e rat e 
es tabli s h e d pur s uant to G.S. 105 2 -l l.l(i). 

Rule 17 NCAC 5C .2004 sets out the procedure for a 
corporation to obtain an extension of time to file its corporate 
franchise and income tax return. 



Author in- G.S. 105-129; 105-262; 105-263. 

SECTION .1100 - CAPITAL STOCK: SURPLUS AND 
UNDIVIDED PROFITS BASE 

.1105 INVESTMENT IN SUBSIDIARY 

For purposes of G.S. 105-122, the capital stock, surplus 
surplus, and undivided profits base may not be reduced by the 
amount invested in a foreign subsidiary. 

Authority- G.S. 105-122; 105-262. 

SUBCHAPTER 5C - CORPORATE INCOME TAX 



SECTION .0700 



BUSINESS AND NONBUSINESS 
INCOME 



.0703 BUSINESS AND NONBUSINESS INCOME 

The classification of income by the labels customarily given 
them, such as interest, rents, royalties, or capital gains, is of no 
aid in determining whether that income is business or 
nonbusiness income. The gain or loss recognized on the sale 
of property, for example, may be business income or 
nonbusiness income depending upon the relation to the 
taxpayer's trade or business: 

( 1 ) Rental income from real or tangible personal 
property constitutes business income when the rental 
of such the property is a principal business activity 
of the taxpayer or the rental of the property is related 
to or incidental to the taxpayer's principal business 
activity. 

(2) A gain or loss from the sale, e xchang e exchange, or 
other disposition of real or personal property 
constitutes business income if the property while 
owned by the taxpayer was used to produce business 
income. However, the gain or loss will constitute 
nonbusiness income providing: 

(a) such the property was subsequently utilized 
principally for the production of nonbusiness 
income for a period of at least three years 



13:9 



NORTH CAROLINA REGISTER 



November 2, 1998 



761 



PROPOSED RULES 



prior to the disposition; and 
(b) sueb the property was reflected as 
nonbusiness on the corporate income tax 
returns filed for those years. 

(3) Interest income is business income if the intangible 
with respect to which the interest was received 
arises out of or was created by a business activity of 
the taxpayer and in those situations where the 
purpose for acquiring the intangible is directly 
related to the business activity of the taxpayer. 

(4) Dividend income is business income when dealing 
in securities is a principal business activity of the 
taxpayer. Oth e r dividends ar e nonbu s in e ss incom e . 

(5) Patent and copyright royalties are business income if 
the patent or copyright was created or used as an 
integral part of a principal business activity of the 
taxpayer. 

Authority G.S. 105-130.4; 105-261 

SECTION .2000 - EXTENSION OF TIME FOR 
FILING RETURN 

.2004 EXTENSION OF FILING DATE 

fa) — An e xt e nsion of tim e to til e th e franchis e and income 
tax r e turn may b e grant e d for s e v e n months providing th e fu l l 
amount of franchis e tax and incom e tax anticipat e d to b e du e is 
pa i d with th e tim e ly fil e d e xtension application. Th e e xt e nsion 
w i l l b e grant e d automatically provid e d: 

f4) th e tota l tax is remitt e d with th e applicat i on form: 

f2-) fee — corporation's — r e cord s — r e fl e ct — no — d e linqu e nt 
r e turns or outstanding tax liability, 
(b) Form CD 119 is th e application for e xt e nsion form that 
must b e fil e d b e for e an e xt e nsion of tim e to ti le th e r e turn can 
b e grant e d. — T h e a p p l ication shall b e compl e ted in duplicat e . 
Th e original shal l b e fil e d with th e Corporat e Incom e and 
Franchi se Tax Divis i on on or b e for e th e 15th day of th e th i rd 
month fol l owing the close of th e incom e y e ar and the duplicat e 
copy attach e d to th e r e turn wh e n fil e d. An approv e d copy of 
th e application will not be r e turn e d to the taxpay e r. — P aym e nt 
of tax i s r e quir e d as follows: 

Franchi se Tax On e hundr e d p e rc e nt of th e amount of 

franchis e tax e xp e ct e d to b e du e for th e taxabl e y e ar mu s t b e 

paid with th e ext e n s ion application fil e d. 

Incom e Tax On e hundr e d p e rc e nt of th e amount of i ncom e 

tax e xpected to b e du e aft e r deducting es timat e d incom e tax 

paym e nts mad e during th e corporation's taxable year must 

b e paid with the e xt e nsion application fil e d. 

A corporation will receive a seven-month extension of time 

to fije its corporate franchise and income tax return if the 

corporation timely files Form CD-419. Application for 

Extension of Time To File Corporate Franchise and Income 

Tax Return. Payment of tax js not required to obtain an 

extension; however, interest accrues at the rate set under G.S. 

1 05-24 1.1 (i) on the amount not paid by the due date of the 

corporate franchise and income tax return and the failure to 

pay penalty in G.S. 105-236(4) applies to the amount not paid 



by the due date of the return. 

Authority G.S. 105-262; 105-263. 

SECTION .2100 - DISSOLUTIONS AND 
WITHDRAWALS 



.2101 REQUIREMENTS WHEN CORPORATION 
ENDS 

fa-) — A corporation that has b ee n voluntarily dissolved 



pur s uant to G.S. 55 11 01 shall fil e all tax r e ports and returns 
du e and pay all tax e s du e th e D e partm e nt of R e v e nu e . — The 



D e partm e nt shall notify s uch corporation of any unfulfill e d tax 
r e quir e m e nts. Aft e r th e e nd of th e y e ar in which th e 



dissolution occurs, a dissolv e d corporation shall not b e subj e ct 



to th e annual franchis e tax unl e s s th e corporation e ngag e s in 
busin e ss — activiti e s — net — appropriat e — te — winding — up — and 



liquidating its busin ess affairs, 
(b) A corporation that has b ee n administrativ e ly dissolv e d 



pursuant to G.S. 55 1 1 21 s hal l fil e all r e ports and r e turns du e 
and pay all tax es du e th e D e partm e nt. 

A domestic corporation that js dissolved, whether 
voluntarily, administratively, or judicially, or a fore i an 
corporation that withdraws from the State or has its certificate 
of authority revoked must file all tax reports and returns due 
and pay aj] taxes due. The final r eturn of a corporation that 
has been dissolved, has withdrawn, r has had its certificate of 
authority revoked must include in income any unrealized or 
unreported profit from installment sales. 

Authority G.S. 55-14-01; 55-14-20; 55-14-30; 55-15-20; 55- 
15-30; 105-130.16; 105-262. 

.2102 WITHDRAWALS/FILING REQUIREMENTS 

fa) — Th e R e v e nu e D e partm e nt will notify a corporation 
which i s withdrawing from North Carolina of any unfulfill e d 
tax r e quir e m e nts. 

(b) Th e final r e turn of a corporation which is dissolving or 
withdrawing mu s t includ e in incom e any unr e al i z e d, d e f e rr e d 
or unr e port e d profit from insta l lment sales and pay th e tax du e 
with s uch r e turn b e for e its dis s olution or withdrawal — is 
approv e d. 

Authority G.S. 55-15-20; 105-130.15; 105-262. 



WXWXXWXXXX 



■K X X W X 



Notice is hereby given that the Department of Revenue 
intends to amend rules cited as 1" NCAC 6B .0104. 
.0110. .0I1H. .0606. .3203. .3206. .3901. .3904. .4004; 17 
NCAC 6C .0124. 

Editor's Note: G.S. 150B-1 (d)(4) exempts the Department of 
Revenue from Part 2 Article 2.4 of Chapter 150 with respect to 
the notice and hearing requirements. The Department will 
however publish the text of proposed rules in the North 
Carolina Register prior to the scheduled time of review by the 
Rules Review Commission. 



762 



NORTH CAROLINA REGISTER 



November 2, 1998 



13:9 



PROPOSED RULES 



Proposed Effective Date: July 1. 1999 

Instructions on How to Demand a Public Hearing (must be 
requested in writing within 15 days of notice): A person may 
request a public hearing by sending a written request for 
hearing to Mr. Sam McEwen, Personal Taxes Division, at PO 
Box 871. Raleigh. NC 27602. by November 19. 1998. Notice 
of any public hearing scheduled on these proposed rule 
changes will be published in the Register. 

Reason for Proposed Action: 1 ' NCAC 6B .0104 - The rule 

is amended to reflect the fact that a person does not have to be 

single to file a federal 1040EZ. 

17 NCAC 66 .0110 - The rule is amended to delete the 

references to the Interstate Commerce Commission and to 

make technical changes. The ICC has been abolished and the 

duties relevant to this rule have been transferred to the 

Surface Transportation Board. 

1 7 NCAC 6B .0118 - The rule is amended to make a technical 

correction in paragraph (j) of the rule; the technical 

correction deletes a duplicate reference to Form NC 8453. 

17 NCAC 6B .0606 - The rule is amended to reflect changes 

made by Chapter 100 of the 1998 Session. That bill deleted 

the prohibition against nonresidents claiming the child care 

tax credit. 

17 NCAC 6B .3203 - The rule is amended to reflect changes 

made by Chapter 696 of the 1996 Session. That act revised 

the failure to pay penalty. 

17 NCAC 6B .3206 - The rule is amended to reflect the fact 

that the failure to pay peiialty cannot be assessed when a fraud 

penalty is assessed. Failure to pay is assessed when there is 

an absence of intent to evade the tax. and fraud is assessed 

when there is an intent to evade the tax. The two are therefore 

mutually exclusive. 

17 NCAC 6B .3901 - The rule is amended to make technical 

changes and to remove the implication that voting by absentee 

ballot is more determinative than the other factors. All the 

factors are taken together and any single factor does not have 

more weight than any other single factor. 

17 NCAC 6B .3904 - The rule is amended to reflect changes 

made by Chapter 100 of the 1998 Session. That act deleted 

the prohibition against nonresidents claiming the child care 

tax credit. 

17 NCAC 6B .4004 - The rule is amended to reflect the fact 

that a shareholder of an S corporation can be a beneficiary 

17 NCAC 6C .0124 - The rule is amended to reflect changes 

in the allowable exemption amount in G.S. 105-1 34. 6tc)(4a). 

Extra withholding allowances are tied to the amount of the 

personal exemption. 

Comment Procedures: Written comments may be submitted 
to Mr. Sam McEwen at North Carolina Department of 
Revenue. Personal Taxes Division. PO Box 871, Raleigh. NC 
2 '602. Comments received will be taken into consideration in 
adopting the permanent rule. If you have questions, you may 
call Mr. McEwen at (919) 733-3565. 



CHAPTER 6 - INDIVIDUAL INCOME TAX 
DIVISION 

SUBCHAPTER 6B - INDIVIDUAL INCOME TAX 

SECTION .0100 - FILING INDIVIDUAL INCOME 
TAX RETURNS 

.0104 ITEMS REQUIRING SPECIAL ATTENTION 

(a) A taxpayer must use the income tax form for the year in 
which his or her taxable year begins. 

(b) The name and current address of the taxpayer must be 
plainly printed. The first name, middle initial, and last name 
must be printed or typed. When a preaddressed form is used. 
any error in the name or address must be corrected. 

(c) When filing an income tax return for an unmarried 
individual who died during the taxable year, write "Deceased" 
after the individual's name on the return followed with the 
name and address of the executor or administrator. 
Example: John Doe (Deceased). Richard Doe. Executor; 100 
Oak Street. Anwhere. North Carolina. 27000. 

(d) The On a return, a taxpayer must furnish his or her 
social security number and the name and social security 
number of his or her spouse and must indicate whether they 
are living tog e th e r or apart, with th e r e turn, filing jointly or 
separately. 

(e) The same filing status checked on the Federal income 
tax return must be checked on the North Carolina income tax 
r e turn (F e d e ral Form 10 IQEZ fil e rs must ch e ck singl e ), return. 
However, if either the taxpayer or the taxpayer's spouse is a 
nonresident and had no North Carolina taxable income for the 
taxable year, the filing status MARRIED FILING 
SEPARATELY must be checked. 

(f) Each applicable line of the tax return must be completed 
and the entering of words or phrases, such as 
"unconstitutional" or "object - self incrimination" does not 
meet the requirement of completing each applicable line on the 
return. 

(g) The tax must be computed accurately and. in the case of 
a delinquent return, the penalty and interest prescribed by 
statute must be added. 

(h) If an individual has moved into or out of North Carolina 
during the tax year or is a nonresident with income from 
sources within North Carolina, the section on Form D-400. 
Computation of North Carolina Taxable Income for Part- Year 
Residents and Nonresidents, must be completed. Credit for tax 
paid to another state is not allowed to an individual moving 
into or out of this State unless the individual has income 
derived from and taxed by another state or country while a 
resident of this State. 

(i) If a tax credit is claimed, there must be attached to the 
return a true copy of the return filed with the other state or 
country and a canceled check, receipt, or other proof of 
payment of tax to the other state or country. 

(j) Every return must be signed by the taxpayer or his or her 
authorized agent, and joint returns must be signed by both 
spouses. 



13:9 



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763 



PROPOSED RILES 



(k) Where tax has been withheld, the state copy of the 
Wage and Tax Statement must be attached to the return. 

(1) Any additional information that will assist in the 
processing and auditing of a return must be indicated on the 
return or a worksheet or schedule attached to the return. 

(m) Anyone who is paid to prepare a return must sign the 
return in the space provided. The signature must be by hand. 
Stamps and labels are not acceptable. 

Authority G.S. 28A-15-8; 105-151; 105-152; 105-154; 105- 
155; 105-163. 5(e); 105-163.'; 105-163. 10; 105-251; 105-252; 
105-262. 

.0110 COMMON CARRIERS 

(a) The Amtrak Reauthorization and Improvement Act of 
1990 provides that no part of the compensation paid to an 
employee of an interstate railroad subject to the jurisdiction of 
the Int e rstat e Comm e rce Commission (ICC) federal Surface 
Transportation Board may be subject to income tax. or income 
tax withholding, in any state except the state of the employee's 
residence when swb the employee performs regularly assigned 
duties in more than one state. The Act also precludes the 
taxation of compensation paid by an interstate motor carrier 
subj e ct to th e jurisdiction of th e ICC or to an employee e£-a 
privat e motor carri e r performing sen ices in two or more states 
except by the state of the employee's residence. Therefore, the 
compensation received by saeh these nonresident employees 
on and aft e r Jul) 6. 1990. for services performed in this state 
s hall not b e State |s not subject to North Carolina income tax 
or income tax w ithholding. 

(b) Under the Federal Aviation Act (49 USCS-1512). a 
nonresident airline employee rendering services on an aircraft 
shall not b e js not liable for North Carolina income tax unless 
h+s the emplovee's scheduled flight time in North Carolina is 
more than 50 percent of h+s the employee's total scheduled 
flight time during the calendar year. If the emplovee's flight 
logs show that more than 50 percent of the scheduled flight 
time is in North Carolina, the amount of income reportable to 
this state State shall be based on the percentage that his the 
North Carolina flight time is to h4s the total flight time for the 
year. 

Authority G.S. 105-163.2; 105-163.18; 105-262. 

.0118 ELECTRONIC FILING OF INDIVIDUAL 
INCOME TAX RETURNS 

(a) Participants in the Federal State Electronic Filing 
Program are defined as follows: 

(1) Electronic Return Originator (ERO). - A firm, an 
organization, or an individual who deals directly 
with the taxpayer, who either prepares a tax return 
for the purpose of having an electronic return 
produced or collects a prepared tax return for the 
purpose of having an electronic return produced, 
and who obtains the taxpayer's signature on Form 
NC 8453. Individual Income Tax Affirmation for 
Electronic Filing. 

(2) Transmitter. - A firm, an organization, or an 



individual who transmits electronic returns directly 
to the Internal Revenue Service (IRS). 
(3) Software Developer. - A person who designs 
software for the purpose of formatting return: 
according to electronic return specifications of the 
Internal Revenue Service and the North Carolina 
Department of Revenue or transmits electronic 
returns directly to the IRS. 
A firm, an organization, or an individual may choose to 
perform one or all of the functions associated with electronic 
filing. 

(b) To participate in the Federal State Electronic Filing 
Program applicants must complete Form NC 8633. 
Application to Participate in the Electronic Filing Program, 
and must be accepted into the Internal Revenue Service 
Federal Electronic Filing Program. Effective for tax year 1994 
applicants and prior participants must also pass a suitability- 
check and receive a letter of acceptance for the current filing 
season as explained in Paragraph (c) of this Rule. 

(c) Suitability checks are performed on all new applicants 
and all previous participants, on an annual basis, except for 
software developers. The following suitability checks may 
result in an applicant or previous participant being denied from 
acceptance into the program: 

(1 ) Conviction of a criminal offense under the revenue 
laws of the State of North Carolina, or of any 
offense involv 'g dishonesty or breach of trust. 

(2) Failure to file timely and accurate tax returns, both 
personal and business. 

(3) Failure to pay personal or business tax liabilities. If 1 
failure to pay taxes is the determining factor in not 
being allowed to participate in the program, a 
conditional acceptance is provided. The terms of the 
acceptance are as follows: 

(A) Applicant must pay all outstanding liabilities 
within six months of the date the application 
is received by the Department of Revenue or 
by the first day allowable for transmission of 
returns, whichever is earlier. 

(B) Failure to fully pay the liabilities within six 
months results in exclusion from the 
electronic filing program. After the liability is 
paid, a new application must be submitted for 
reconsideration. 

(4) Misrepresentation on an application. 

(5) Suspension or rejection from the program in a prior 
year if corrective action is not taken and approved 
by the North Carolina Department of Revenue. 

(6) Other facts or conduct of a disreputable nature that 
would reflect adversely on the program. 

(7) Unethical practices in return preparation. 

(d) The Department shall send the applicant a letter of 
acceptance for participation in the Federal State Electronic 
Filing Program for the current filing season after passing the 
suitability check. If the applicant does not pass the suitability 
check, a letter of rejection explaining the reason for rejection 
and the applicant's right of appeal shall be sent to the 
applicant. 






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(e) The applicant agreement requires the participant and the 
participants employees to comply with all of the provisions of 
Internal Revenue Service Publication 1345, Handbook for 
Electronic Filers of Individual Income Tax Returns, of North 
Carolina Department of Revenue Handbook for Electronic 
Filers of Individual Income Tax Returns, and of related 
publications for the applicable years of participation. 

(f) Effective for tax year 1995. a new application, Form NC 
8633, shall not be required each year. If an applicant is 
accepted into the Federal/State Electronic Filing Program for 
tax year 1994, an application is not required for subsequent tax 
years except for revisions and supplements including changes 
to the electronic filer's ownership structure, business name, 
contact representative's name or telephone number, functions 
performed, applicant or branch office(s) or drop-off collection 
point(s). 

(g) Completed applications must be received by the North 
Carolina Department of Revenue prior to transmitting returns 
on or before December 1 preceding the tax year for which the 
application is made. 

(h) After an electronic return has been prepared and before 
the return is transmitted electronically, the taxpayer (and 
spouse, if a joint return) must verify the information on the 
return and sign and date a completed Form NC 8453. 
Individual Income Tax Affirmation for Electronic Filing. The 
preparer/transmitter must provide the taxpayer with a paper 
copy of the return. ■: 

(i) Form NC 8453 must be submitted to the Department 
with all required schedules, attachments, and information by 
the ERO no later than the next working day after receiving the 
IRS acknowledgment of the federal return with a "NC" 
indicator. The "NC" indicator establishes that a North Carolina 
return was received by the IRS Memphis Service Center with a 
corresponding federal return. The State return will be 
electronically down-loaded to the North Carolina Department 
of Revenue for processing. 

(j) A copy of Form NC 8 4 53 and 8453, copies of the 
taxpayers' wage and tax statements, schedules explaining other 
modifications made on Form D-400, and other documents 
requiring signatures must be retained by the ERO until the end 
of the >ear in which the return was filed. Substitute wage and 
tax statements and copies of wage and tax statements 
generated by a preparer" s or transmitter's software are not 
acceptable. The employer-issued state copy of the wage and 
tax statement is the only acceptable wage and tax statement. 

(k) After the ERO receives IRS acknowledgment with a 
"NC" indicator. Forms NC 8453 shall be batched and mailed 
to the Department of Revenue in the same manner as the 
federal forms 8453s are furnished to the Internal Revenue 
Service. Forms not received by the Department in a timely 
manner will be requested in writing by the North Carolina 
Department of Revenue Electronic Filing Coordinator. Any 
request for missing Forms NC 8453s must be responded to in a 
timeh manner. Failure to comply w ith the obligations of an 
Electronic Filer can cause the applicant's participation in the 
electronic filing program to be terminated. 

(1) The status levels of a participant in the electronic filing 
program are as follows: 



(1) Accepted in good standing - electronic filing 
participant who has filed a North Carolina 
application for electronic filing and has met all the 
criteria for the electronic filing program and has not 
received a written warning from the Department. 

(2) Warning status - electronic filing participant who 
has been issued a letter of warning due to 
noncompliance with program requirements. 

(3) Probation - electronic filing participant who has 
been issued a warning letter from the Department. 

(4) Termination - electronic filing participant who has 
failed to comply with the terms of probation or has 
committed flagrant violations of the program 
requirements. 

(m) Taxpayer returns transmitted by an applicant or former 
participant who has been rejected from the program shall not 
be processed by the Department. The taxpayers shall be 
notified to file paper returns. 

(n) Terminated participants may apply for reinstatement in 
the Federal/State Electronic Filing Program upon compliance 
with all requirements of the program. 

Authority G.S. 105-262. 

SECTION .0600 - TAX CREDITS 

.0606 CREDIT FOR CHILD AND DEPENDENT 
CARE EXPENSES 

(a) A tax credit is allowable for the employment-related 
expenses for child and dependent care. The credit is 
calculated on the net qualified federal employment-related 
expenses after reduction for any employer-paid dependent care 
assistance that is excluded fron federal gross income. In 
calculating the credit, expenses incurred in the previous tax 
year but not paid until the current tax year shall be included. 

(b) For purposes of determining the credit allowed under 
G.S. 1 05- 1 5 1 . 1 1 , an individual individuals who h are not able 
to dress, clean, or feed himself themselves because of a 
physical or mental condition « are not able to care for himself. 
themselves. Individuals with mental conditions who require 
constant attention to prevent them from injuring themselves or 
others are considered to be unable to care for themselves. 

(c) For a dependent who becomes age seven during the 
taxable year and who is not physically or mentally incapable of 
caring for hims e lf, himself or herself, the tax credit for 
employment-related expenses incurred prior to the dependent's 
seventh birthday shall be calculated using the percentages in 
the column labeled Percentage B under G.S. 105-151. ll(al). 
The tax credit for employment-related expenses incurred after 
the dependent becomes age seven shall be calculated using the 
percentages in the column labeled Percentage A under G.S. 
105-151. Il(al). 

(d) If an individual was a r e s i d e nt of North Carolina and his 
spous e was a nonr e sident, h e may not claim cr e d i t for any 

e mp l oym e nt re l at e d — e xp e ns es — paid — by — h+s — spous e . An 

individual w ho was a nonresid e nt during any part of th e tax 
y e ar, mu s t reduc e th e e mploym e nt r el at e d e xp e ns e s by th e 
amount h e pa i d during th e p e riod h e wa s a nonr e s i dent. A 



1 3:9 



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765 



PROPOSED RULES 



nonresident or part-vear resident |s allowed this tax credit jn 
proportion to the amount of federal taxable income, as 
adjusted, that is taxable by North Carolina. 

Authority G.S. 105-151.11; 105-262. 

SECTION .3200 - PENALTIES: INDIVIDUAL 
INCOME TAX 

.3203 PENALTIES FOR FAILURE TO FILE AND 
PAY 

(a) General. ~ Under the provisions of G.S. 105 236 105- 
236. both the failure to tile and failure to pay penalties, if due. 
can be applied for the same month. If a return is filed late 
without payment of the tax shown due. both the lat e filing and 
lat e paym e nt failure to file and failure to pav penalties will be 
assessed at the same time. 

(b) Extension. ~ If the return is filed under an extension, 
the failure to file and fai l ur e to pay p e nalti e s will be assessed 
penalty applies from the extended filing date rather than from 
the original due date. The failure to pay penalty is 1 p e rc e nt 
of the tax not paid by th e e xt e nd e d applies from the original 
due date of the return. The failure to pay penalty will app l y on 
any r e ma i ning balanc e du e if is assessed when the tax paid by 
the original due date of the return is less than 90 percent of the 
total amount of tax due. If the 90 percent rule is met. any 
remaining balance due. including interest, must be paid with 
the income tax return on or before the expiration of the 
extension period to avoid the lat e paym e nt failure to pay 
penalty. Interest is due from the original due date to the date 
paid. 

(c) Amended Return. ~ The failure to pay penalty does not 
apply to amounts paid w ith an amended return if the amount 
shown due on the return is paid when the return is filed. 

(d) Assessment. — The failure to gay penalty applies to a 
proposed assessment of additional tax due that js not paid 
within 30 davs of the assessment. 



Authority G.S. 105-152<e): 105-155; 
105-160.'; 105-236: 105-262; 105-263. 



105-157:105-160.6; 



.3206 FRAUD PENALTY 

When an audit is based upon a federal audit report and the 
fraud penalty has been assessed for federal purposes, the 50 
percent fraud penalty will be assessed for state State purposes. 
When the fraud penalty is assessed, no penalty for negligence 
shall b e is assessed with respect to the same deficiency: 
however, oth e r penalties including for failure to fil e , failur e to 
pay. and th e p e nalty for file and underpayment of estimated 
income tax will be assessed if applicable with respect to the 
same deficiency. 

Authority G.S. 105-159; 105-163.15; 105-236:105-262. 

SECTION .3900 - NONRESIDENTS AND PART-YEAR 
RESIDENTS 

.3901 DEFINITION OF RESIDENT 



« 



(a) Domicile means the place where an individual has 
true, fixed permanent home and principal establishment, and t 
which place, whenever h e is absent, he the individual has th 
intention of returning. In many cases, a determination must 
made as to when or whether a domicile has been abandoned 
A long standing principle in tax administration, repeatedl 
upheld by the courts, is that a man an individual can have bu 
one domicile: and. once established, it is not legally abandonee 
until a new one is established. A taxpayer may have severa 
places of abode in a year, but at no time can an individual hav< 
more than one domicile. A mere intent or desire to make i 
change in domicile is not enough; voluntary and positiv 
action must be taken. 

(b) Some of the tests or factors to be considered ir 
determining the legal residence of an individual for income ta> 
purposes are as follows: 



(I) 
(2) 
(3) 
(4) 
(5) 

(6) 

(7) 
(8) 

(9) 

:io) 



Place of birth. 

Permanent residence of father parents. 

Family connections, close friends. 

Address given for military purposes. 

Civic ties, church membership, club or lodge 

membership. 

Bank account or business connections. 

Payment of state income taxes. 

Listing of "legal" or "permanent" address on Federal 

tax returns. 

C. "tinuous car registration and driver's license. 

Voting bv absentee ballot (on e of th e b e st t e sts to 



det e rmin e p e rman e nt r e sid e nc e ), ballot. 

(11) Occasional visits or spending one's leave "at home 
if a member of the armed services. 

(12) Ownership of a home. 

(13) Professional ties-teachers, bar. CPA. etc. 
certificates. 

(14) Attendance of children at State supported colleges 
or universities on a basis of residence— taking 
advantage of low er tuition fees. 

(15) Execution of approved certificates or other 
statements indicating permanent residence. 

(16) Expression of intention. 

(c) A legal resident of North Carolina serving in the United 
States Armed Forces is liable for North Carolina income tax 
and North Carolina income tax shall be withheld from his that 
individual's military pay whether he the individual is stationed 
in this State or in some other state or country. 

(d) An individual who enters military service while a 
resident of North Carolina is presumed to be a resident of this 
State for income tax purposes. Residency in this State is not 
abandoned until residency is established elsewhere. 

(e) To change residency, th e servic e man an individual in 
military service must not only be present in the new location 
with the intention of making it his a new domicile, but must 
also factually establish that he the individual has done so. 



Authority G.S. 105-1 34.lt 12); 105-134.5; 105-262. 

.3904 TAXABLE INCOME OF NONRESIDENTS 
AND PART-YEAR RESIDENTS 



i 



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PROPOSED RULES 



(a) Nonresidents and part-year residents are required to 
prorate their federal taxable income to determine the portion 
that is subject to North Carolina tax. 

(b) An individual who files a joint federal income tax return 
with his or her spouse but cannot qualify to file a joint North 
Carolina income tax return because the spouse is a nonresident 
and had no North Carolina taxable income must calculate the 
individual's federal taxable income on a federal income tax 
form as a married person filing a separate federal income tax 
return and attach it to the individual's North Carolina return to 
show how the separate federal taxable income was determined. 
The individual filing the separate federal return must report 
only the individual's income, exemptions, and deductions. In 
lieu of making the calculation on a federal form, an individual 
may submit a schedule showing the computation of the 
individual's separate federal taxable income. An individual 
who submits a schedule must attach a copy of pages 1 and 2 of 
the individual's joint federal return if the federal return reflects 
an address outside North Carolina. 

(c) An individual who has income from sources within 
another state or country while a resident of North Carolina and 
is subject to tax on the income by the other state or country 
may be eligible to claim a tax credit under G.S. 105-151. 

(d) A nonresident is not entitled to the tax cr e dit s credit for 
tax paid another state or country or for child and d e p e nd e nt 
car e e xp e ns e s, country. 



deductions are expected to exceed the standard deduction and 
for each two thousand five hundred dollars (S2.000) ($2.500) 
of adjustments reducing income. For taxpayers whose annual 
income equals or exceeds the applicable threshold for their 
filing status, an additional allowance may be claimed for each 
two thousand dollars (S2.000) that their itemized deductions 
are expected to exceed the standard deduction and for each 
two thousand dollars ($2.000) of adjustments reducing 
income. The thresholds are: 

Filing Status Applicable Threshold 

Head of Household $80.000 

Married $50.000 

Single $60.000 

(b) Tax Credits. — If an e mploy e e An employee who will be 
entitled to a tax cr e dit, h e credit may claim one additional 
allowance for each one hundred forty dollars ($110.00) 
seventv-five dollars ($175.00) of tax cr e dit, credit, unless the 
employee's annual income equals or exceeds the applicable 
threshold set out in paragraph (b) of this Rule for the 
employee's filing status. In that circumstance, the employee 
may claim an additional allowance of only one hundred forty 



dollars ($140.00) for each tax credit. 



Authority G.S. 105-163.3; 105-163.5: 105-262. 



■x -x w yt w w 



XWJCWWWWWWWWWW 



Authority G.S. 105-134.5: 105-151: 105-262. 

SECTION .4000 - S CORPORATION 

.4004 TAX CREDITS 

If part of the S corporation's income is earned yvithin and 
taxed by another state, either to the individual or to the 
corporation, a resident shareholder is entitled to a tax credit on 
h+s the individual or the estates and trusts income tax return for 
h+s the share of the tax paid to the other state. A shareholder 
claiming the tax credit must attach a schedule to his the income 
tax return reflecting the total amount of tax paid to the state 
State by the S corporation, and explaining how his the 
shareholder's pro rata share of the tax was determined. 
Nonresident shareholders are not allowed credit for tax paid to 
another state. 

Authority G.S. 105-131.8; 105-262. 

SUBCHAPTER 6C - WITHHOLDING 



Notice is hereby given that the Department of Revenue 
intends to amend rules cited as 17 NCAC 7B .0104. 
.0206. .1301 .:303. .1602. .1905. .2101. 

Editor's Note: G.S. 150B-1 (d)(4) exempts the Department of 
Revenue from Part 2 Article 2A of Chapter 150 with respect tf' 
the notice and hearing requirements. The Department will 
however publish the text of proposed rules in the North 
Carolina Register prior to the scheduled time of review by the 
Rules Review Commission. 

Proposed Effective Date: July 1. 1999 

Instructions on How to Demand a Public Hearing (must be 
requested in writing within 15 days of notice): A person may 
request a public hearing by sending a written request for a 
hearing to Mr. Tim Holmes. Sales and Use Tax Division, at 
PO Box 871, Raleigh. NC 27602. by November 19. 1998. 
Notice of any public hearing scheduled on these proposed 
Rules will be published in the Register. 



SECTION .0100 - WITHHOLDING INCOME TAXES 

.0124 ADDITIONAL WITHHOLDING 
ALLOWANCES 

(a) Deductions. ~ Additional withholding allowances may 
be claimed by taxpayers expecting to have allowable itemized 
deductions exceeding the standard deduction or alloyvable 
adjustments to income. One For most taxy pavers, one 
additional allowance may be claimed for each two thousand 
five hundred dollars ($2,000) ($2.500) that the itemized 



Reason for Proposed Action: 17 NCAC 7B .0104, .0206 - 

Chapter 121 ( HB 136~) of the 1998 Session repealed the 
annual wholesale license, effective July 1. 1998. and renamed 
the required "license" as a "certificate of registration" to 
match the terminology used by the Department. The 
amendments to these rules reflect these changes. 
1 7 \CAC 7B . 1301, . 1303 - These rules are amended to delete 
a confusing reference to donees in .1301 and to clarify the 
taxation of property delivered to out-of-state donees. Rule 



13:9 



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767 



PROPOSED RULES 



.1301 addesses purchasers and Rule .1303 addresses donees. 

A donee is the recipient of a gift. 

17 NCAC 7B. 1602, .1905, .2101 - These rules are amended 

to reflect changes made by SB 132" of the 199H Session. That 

bill repeals the sales tax on piped natural gas effective July I. 

1999. 

Comment Procedures: Written comments may be submitted 
to Mr. Tim Holmes at the North Carolina Department of 
Revenue. Sales and Use Tax Division. PO Box 871, Raleigh. 
NC 2 '602. Comments received will be taken into 
consideration. If you have questions, you may call Mr 
Holmes at (919) '33-2151. 

CHAPTER 7 - SALES AND USE TAX 

SUBCHAPTER 7B - STATE SALES AND USE TAX 

SECTION .0100 - GENERAL PROVISIONS 

.0104 RETURNS 

(a) General. -- G.S. 105-164.16 establishes the filing 
frequency of sales and use tax returns and the content of the 
returns. G.S. 105-164. 4(c) requires a retailer and a wholesale 
merchant to register with the Department and obtain a l ic e ns e . 
G.S. 105 16 4 .5(1) r e quir e s a whol e sal e m er chant to r e gi s t e r 
with th e — D e partm e nt and obtain a lic e ns e , certificate of 
registration. G.S. 105-164.6 requires a retailer who delivers 
property for storage, use. or consumption but does not have a 
place of business in this State to register with the Department 
and obtain a lic e n se , certificate of registration. A person who 
is engaged in business, is not otherwise required to file a sales 
and use tax return, and. on two or more occasions within a 
twelve-month period, purchases property subject to use tax 
must register with the Department and begin filing sales and 
use tax returns. A person who is engaged in business, is not 
otherwise required to file a sales and use tax return, and 
purchases property subject to use tax only once in a twelve- 
month period must file a return and pay the tax due within 15 
days after the end of the month in which the purchase was 
made. 

(b) Schedules. - A retailer who files an estimated return for 
a semimonthlv reporting period that reports tax payable by 
more than one location in the State must attach two schedules 
to the return. One schedule must list the amount of State tax 
due for each location in the State and the other must list the 
amount of local tax due for each county. 

(c) No Sales or Purchases Bv Business. — A retailer who 
does not make any sales during a reporting period must file a 
return for that period and mark '"no sales" on the return. 
Similarly, a person who is not a retailer but is engaged in 
business, purchases tangible personal property for the business 
that is subject to use tax. and does not make am taxable 
purchases during a reporting period must file a return for that 
period and mark "no purchases" on the return. 

(d) Seasonal Business. - A retailer who engages in business 
for six or fewer consecutive months in each year may register 
as a seasonal filer and indicate the months in which the retailer 



engages in business. A retailer who is registered as a seasonal 
filer is not required to file a return for an off-season reporting 
period in which the retailer did not engage in business. 

(e) Wholesale Merchant. — A person who engager 
exclusively in the business of making wholesale sales is not^ 
required to file a return. A person who, on two or more 
occasions within a twelve-month period, either makes taxable 
sales to users, consumers, or nonregistered merchants or makes 
purchases subject to use tax is not engaged exclusively in the 
business of making wholesale sales and must begin filing sales 
and use tax returns. A wholesale merchant who is not required 
to file a sales and use tax return and who. on only one occasion 
within a twelve-month period, either makes taxable sales to 
users, consumers, or nonregistered merchants or makes 
purchases subject to use tax must file a return and pay the tax 
due within 15 days after the end of the month in which the sale 
or purchase was made. 

(f) Non-Business Use Tax. ~ An individual who is not 
engaged in the business of selling tangible personal property at 
retail and who purchases for a non-business purpose tangible 
personal property that is subject to use tax must report the tax 
due on Form E-554. The return is due annualK by the date set 
under G.S. 105-164.16. 

Authority G.S. 105-164.3; 105-164.16; 105-164.1'; 105-262. 

SECTION .0200 - GENERAL APPLICATION OF 
LAW TO MANUFACTURING AND 

INDUSTRIAL PROCESSING . 

.0206 SALES BY MANUFACTURERS 

(a) Sales of tangible personal property by manufactur e r s a 
manufacturer to a registered retailer or a wholesale m e rchants 
merchant in this stat e State for the purpose of resale are not 
subject to sales or use tax provid e d jf the transactions are 
supported by properly executed Certificates of Resale. Form 
E-590. 

(b) Sales of tangible personal property by manufactur e rs a 
manufacturer to a nonresident retail or wholesale m e rchants 
merchant for the purpose of resale in another state are not 
subject to sales or use tax wh e n even though the property is 
delivered to such purchasers in this stat e provid e d State if the 
nonresident retail or wholesale merchant is registered for sales 
and use tax purposes in a taxing jurisdiction outside this state 
State and the transactions are supported by properly executed 
Certificates of Resale. Form E-590. 

(c) Sales of tangible personal property by manufactur e rs 
who d e liv e r a manufacturer who delivers the property to 
purchasers outside this stat e State or who d e liv e r delivers the 
propertv to a common carrier or to the mails for delivery to the 
purcha se r purchasers at a point outside this state State are not 
subject to sales or use tax. Such These sales must be 
supported by the prescribed records. 

(d) Sales of tangible personal property by manufacturers to 
nonregistered merchants in this s tat e State and sales to , 
nonregistered nonresident merchants who accept delivery of' 
the property in this stat e State are subject to the sales or use 
tax. 



768 



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November!, 1998 



13:9 



PROPOSED RULES 



A trip sheet that is signed by the seller's delivery 
agent and shows the signature and address of the 
person who received the delivered goods outside the 
state. 



{e) — Manufactur e rs purcha s ing tangibl e p e r s onal prop e rty (3) 

and reselling it in its same form to r e gi s t e r e d m e rchant s for 
resal e shall obtain an annual whol es ale lic e ns e . Manufactur e rs 
maintaining a war e hous e or oth e r plac e of distribution in this 
s tat e , s e parate and apart from th e place of manufactur e , for th e 

sale — ef — distribution — of th e ir — manufactur e d — products — te Authority G.S. 105-164.13; 105-262. 
regist e r e d m e rchants for th e purpos e of r e sal e shall obtain an 
annual whol e sal e lic e ns e . Manufactur e rs who ar e r e quir e d to 
obtain the whol e sal e lic e ns e ar e also liabl e for a m e rchants 
certificat e of r e gistration licens e . 

fft(e) Manufacturers who only make sales to registered 
merchants for resale or sales which that are otherwise exempt 
from the tax are not required to report such the sales to the 
Department; however, manufacturers making taxable retail 
sales or purchases subject to the use tax must register with the 
Department and file sales and use tax reports reflecting such 
the taxable sales or purchases and pay the applicable tax due 
thereon. 

(g-Hf) A manufacturer becomes liable for tax on its sales of 
tangible personal property when it sells directly to users and 
consumers, including employees. Such These sales includ e : 
include aj| of the following: 

(1) sales of bottled drinks by a bottling plant to users 
and consumers, including e mploy ee s: employees. 

(2) sales to employees or other persons of food 
products, m e als meals, and other prepared foods by 
an industrial plant or other business of any kind 
through a commissary, concession stand, cafeteria, 
lunch stand stand, or other similar plac es : place. 

(3) sales of fuel, hosiery, furnitur e furniture, or any 
other kind of taxable tangible persona! property to 
employees or any other users or consumers. 

fh-Kg) A manufacturer's casual or occasional sale of its 
worn out. obsol e t e obsolete, or surplus machinery, acc e ssori e s 
accessories, and similar items are not subject to the tax. 



Authority G.S. 105-164.4; 
105-164.28; 105-262. 



105-164.6; 105-164.13; 



SECTION .1300 - SALES IN INTERSTATE 
COMMERCE 

.1301 OUT-OF-STATE DELIVERIES 

Sales within the state State of tangible personal property 
that the vendor delivers to the purchaser at a point outside the 
s tat e . State, or that the vendor delivers to a common carrier or 
to the mails for transportation and deliver}, to the purchaser ef 
a donee at a point outside the stat e . State, are not subject to the 
applicable state and local sales or use tax if the property is not 
returned to a point within the s tat e State and the vendor 
furnishes acceptable proof of transportation to a point outside 
the stat e . State. The most acceptable proof of transportation 
and deliver) to a point outside the state State is any of the 
following: 

(1) A waybill or bill of lading made out to the seller's 
order calling for deliver). 

(2) An insurance or registry receipt issued by the United 
States Postal Service, or a postal service or receipt. 



.1303 DELIVERIES TO DONEES 

Sal e s of print e d mat e rial by v e ndors oth e r than print e r s and 
sales of oth e r taxabl e tangibl e p e r s onal prop e rty to any person 
in North Carolina which such p e rson provid e s without charg e 
to r e cipi e nts, wh e th e r it b e advertising mat e rials or gift s or 
donation s ar e subj e ct to th e four p e rcent state tax and any 
applicabl e local sal e s or us e tax e v e n though the vendor 
d e liv e rs th e prop e rty to th e don ee at a point outsid e this state 
and without regard to wh e th e r such d e liv e ry is mad e by mail, 
common carri e r or otherwise. — Sal e s of taxabl e tangibl e 
p e rsonal prop e rty d e liv e r e d to a don e e or any oth e r us e r or 
consum e r in North Carolina are taxable . 

A donee is a person to whom the buyer of tangible personal 
property gives the property without charge. When a North 
Carolina retailer sells tangible personal property to a resident 
buyer and the retailer, at the direction of the buyer, delivers the 
property to the buver's donee instead of to the buyer, the sale 
by the retailer is subject to applicable State and local sales tax. 
The tax a pplies regardless of whether the donee js located 
inside or outside the State and regardless of whether the 
delivery is made by mail, by common carrier, or by another 
m eans . 

When a North Carolina retailer sells tangible personal 
property to a nonresident buver and the retailer, at the direction 
of the buyer, delivers the property to the buver's donee instead 
of to the buver. the sale by the retailer js subject to applicable 
State and local sales tax only if the delivery to the donee js 
made inside the State. If the delivery to the donee is made 
outside the State, no State or local sales or use tax applies. A 
retailer who, at the direction of a nonresident buver. delivers 
property to the buver's donee at a point outside the State must 
have acceptable proof of delivery m accordance with 17 
NCAC7B .1301. 



Authority G.S. 105-164.4; 105-164.6; 105-262. 

SECTION .1600 - SALES TO OR BY HOSPITALS: 
EDUCATIONAL: CHARITABLE OR 
RELIGIOUS INSTITUTIONS: ETC.: 
AND REFUNDS THERETO 

.1602 REFUNDS TO NONPROFIT ENTITIES AND 
MEDICINES AND DRUGS PURCHASED BY 
HOSPITALS 

(a) The refund provisions contained in this Rule do not 
apply to the tax on taxable sales by the nonprofit entities 
named in G.S. 105- 164. 14(b) and no part thereof shall be 
refunded or claimed as a refund. Nonprofit entities registered 
for sales and use tax purposes may purchase the tangible 
personal property which they resell without paying tax thereon 
to their suppliers provided they have furnished such suppliers 



13:9 



NORTH CAROLINA REGISTER 



November 2, 1998 



769 



PROPOSED RULES 



with properly executed Certificates of Resale. Form E-590. 
Certificates of resale may not be used by any nonprofit entity 
in making purchases of tangible personal property to be used 
or consumed by such purchaser. 

(b) All refund claims shall be substantiated by proper 
documentary proof and only the taxes actually paid by the 
claimant during the period for which the claim for refund is 
filed may be included in the claim. Any local sales or use 
taxes included in the claim shall be separately stated in the 
claim for refund. In cases where more than one county's tax 
has been paid, a breakdown shall be attached to the claim 
showing the amount of each county's local tax separately. 

(c) As to taxes paid on the claimant's purchases for use. 
other than those made by contractors performing work for the 
claimant, invoices or copies of invoices showing the property 
purchased, the cost thereof, the date of purchase and the 
amount of state and local sales or use tax paid during the 
refund period shall constitute proper documentary proof. 

(d) To substantiate a refund claim for sales or use taxes paid 
on purchases of building materials, supplies, fixtures and 
equipment by its contractor, the claimant shall secure from 
such contractor certified statements setting forth the cost of the 
property purchased from each vendor and the amount of state 
and local sales or use taxes paid thereon. In the event the 
contractor makes several purchases from the same vendor, 
such certified statement shall indicate the invoice numbers, the 
inclusive dates of the invoices, the total amount of the inv 'ces 
and the sales and use taxes paid thereon. Such statement shall 
also include the cost of any tangible personal property 
withdrawn from the contractor's warehouse stock and the 
amount of state and local sales or use tax paid thereon by the 
contractor. Similar certified statements by his subcontractors 
shall be obtained by the general contractor and furnished to the 
claimant. Any local sales or use taxes included in the 
contractor's statements shall be shown separately from the state 
sales or use taxes. The contractor's statements shall not 
contain sales or use taxes paid on purchases of tangible 
personal property by such contractors for use in performing the 
contract which does not annex to. affix to or in some manner 
become a part of the building or structure being erected, 
altered or repaired which is owned or leased by a nonprofit 
entity for use by a nonprofit entity named in G.S. 105- 
164.14(b) for carrying on its nonprofit activities. Examples of 
property on which sales or use tax has been paid by the 
contractor and which shall not be included in the contractor's 
statement are scaffolding, forms for concrete, fuel for the 
operation of machinery and equipment, tools, equipment repair 
parts, equipment rentals and blueprints. 

(e) The refund provisions set forth in this Rule apply only 
to the nonprofit entities described in G.S. 1 05- 164. 14(b). but 
do not apply to nonprofit fraternal, civic or patriotic 
organizations, notwithstanding that such organizations may 
perform certain charitable functions. The refund provisions 
set forth in this Rule do not apply to nonprofit entities which 
are owned and controlled by the United States, the state or a 
unit of local government except hospitals and medical 
accommodations created under the Hospital Authorities Law. 
Article 2 of Chapter 13 IE of the General Statutes and 



nonprofit hospitals owned and controlled by a unit of local 
government that elect to receive semiannual refunds under 
G.S. 105-164. 14(b) instead of annual refunds under G.S. 
105- 164. 14(c). Any nonprofit hospital owned and controller 
by a unit of local government may submit a written request to 
receive semiannual refunds under G.S. 105-164. 14(b) instead 
of annual refunds under G.S. 105-164. 14(c). The request shall 
be effective beginning with the six-months refund period 
following the date of the request and applies to sales or use 
taxes paid on or after the first day of the refund period for 
which the request is effective. 

(f) The refund provisions of this Rule do not apply to sales 
taxes incurred by employees on purchases of food, lodging, or 
other taxable travel expenses paid by employees and 
reimbursed by a nonprofit entity listed in G.S. 105-164. 14(b). 
These expenses are personal to the employee because the 
contract for food, shelter, and travel is between the employee 
and the provider and payment of the tax is by the employee 
individually and personally. In this circumstance, a nonprofit 
entity has not incurred any sales tax liability and has not paid 
any sales tax: instead: it has chosen to reimburse a personal 
expense of the employee. The refund provisions of this Rule 
do not apply to any of the following: 



(1) 



(2) 

(3) 

(4) 

(5) 

(6) 
(7) 



Charges by a utility for e l e ctricity, pip e d natural gas. 

electricity and local. toll. or private 

telecommunications services. 

Occupancy taxes levied and administered by certain 

counties and cities in this state. 

Prepared food and beverage taxes levied by various^ 

local governments in this state. B, 

Highway use taxes paid on the purchase, lease, or 

rental of motor vehicles. 

The white goods disposal tax levied on new white 

goods. 

The scrap tire disposal tax levied on new tires. 

The dry-cleaning solvent tax levied on dry-cleaning 

solvent purchased by a dry cleaning facility. 



Authority G.S. 105-164.14; 105-262; 105-264. 

SECTION .1900 - TIRE RECAPPERS AND 
RETREADERS: TIRE AND TUBE REPAIRS 

.1905 SALES TO TIRE RECAPPERS 

(a) Sales to tire recappers of camelback or other rubber 
products, cement and rubber solvent, cord fabric, wheel 
weights and other items of a similar nature which enter into or 
become an ingredient or component part of the recapped tires 
or are attached to and delivered with the tires to the customer 
are exempt from tax. 

(b) The gross receipts derived by a utility from sales of 
electricity and pip e d natural gas to tire recappers for use in 
connection with the operation of the recapping plant are 
subject to th e thr ee p e rc e nt stat e rat e of ta.X T to tax at the rate 
set in G.S. 105-164.4. Sales of other -feel fuel, except piped M 
natural gas, to tire recappers for use in connection with the ^ 
operation of the recapping plant are subject to the one percent 
rate of tax. Sales of piped natural gas are exempt from sales 



770 



XORTH CAROLINA REGISTER 



November 2, 1998 



13:9 



PROPOSED RULES 



tax and are subject to the excise tax imposed by Article 5_E of 
G.S. 105. 

(c) Sales to tire recappers of mill machinery, or parts and 
accessories therefor, for use exclusively in the recapping 
process are subject to the one percent rate of tax, with a 
maximum tax of eighty dollars ($80.00) per article. Sales to 
contractors and subcontractors of mill machinery or mill 
machinery parts and accessories for use by them in the 
performance of contracts with manufacturing industries and 
plants and sales to subcontractors purchasing mill machinery 
or mill machinery parts and accessories for use by them in the 
performance of contracts encompassed in such contracts with 
manufacturing industries and plants are subject to a one 
percent rate of tax, with a maximum tax of eighty dollars 
($80.00) per article where applicable. Such mill machinery or 
mill machinery parts and accessories must be for use by tire 
recappers in the production process, as the term "production" 
is defined in 17 NCAC 7B .0202(a)(1). to qualify for the one 
percent rate of tax with a maximum tax of eighty dollars 
($80.00) per article when purchased by such contractors or 
subcontractors. Contractors and subcontractors may obtain 
Contractor's and Subcontractor's Certificate. Form E-580, from 
the Office Services Division, Taxpayer Assistance Section, 
North Carolina Department of Revenue, to be executed by 
them and furnished to their vendors in connection with such 
purchases as the vendor's authority to apply the one percent 
rate of tax thereto. The following items when sold to tire 
recappers for use exclusively in the recapping process are 
considered to be mill machinery or mill machinery parts and 
accessories within the meaning of the Sales and Use Tax 
Article: 

wire brushes; 

mold lube; 

curing tubes and rims; 

molds and matrices; 

buffing equipment; 

buffing discs; 

buffing rasps; 

rasp teeth; 

crayons for marking tires; 

tire trimmers; 

boilers: 

tire handling equipment used exclusively between 

the beginning and ending steps of the recapping 

process: 

inspection spreaders used exclusively to inspect 

casings being recapped; 

spinners used for applying cement used on casings 

being recapped; 

pre-condensing tanks for air lines used for applying 

cement, dusting buffed casings, and inflating curing 

tubes; 

casing balancers used exclusively in balancing 

casings to be recapped; 

tread builders used to apply tread rubber to casings 

being recapped; 

air compressors used exclusively in retreading or 

recapping process: 



(1) 
(2) 
(3) 

(4) 
(5) 

(6) 

(7) 

(8) 

(9) 

(10) 

(11) 

(12) 



(13) 



(14) 



(15) 



(16) 



(17) 



(18) 



(19) dust collectors; 

(20) knives, stitchers, rollers, shears, awls, and splicing 
tools used to perform work on the ingredient 
material or the manufactured product; 

(21) thermometers, pyrometers, and durometers used in 
testing mold heat and cure hardness of the rubber 
used in the recapping process; 

(22) bagging and debagging equipment; 

(23) sprayers used exclusively in the recapping process; 

(24) matrix loaders; 

(25) steam traps and valves used in steam lines for curing 
molds; 

(26) mold cleaners. 

(d) The following are examples of items which are subject 
to the four percent state tax and any applicable local sales or 
use tax when sold to tire recappers for use or consumption: 

( 1 ) motor vehicle jacks: 

(2) tire tools not used between the beginning and ending 
recapping processes; 

(3) balancing machinery used after recapping process is 
completed; 

(4) equipment used to remove tires from the rim before 
the recapping process begins; 

(5) administrative equipment such as office supplies, 
file cabinets and other office equipment; 

(6) cleaning compounds for janitorial and sanitary 
purposes; 

(7) uniforms for employees; 

(8) advertising materials; 

(9) lubricants, repair parts and accessories for motor 
vehicles; 

(10) inspection bags; 

(11) gloves. 

(e) The lists in Paragraphs (c) and (d) of this Rule are not 
intended to be exclusive but are for illustrative purposes only. 
If there is any question as to the tax status of any item not on 
the lists, it may be submitted to the Secretary of Revenue for a 
determination as to the applicable rate of tax. 

Authority G.S. 105-164.4; 105-164.6; 105-262; 105-264. 

SECTION .2100- ELECTRICITY: PIPED NATURAL 

GAS: BOTTLED GAS: COAL: COKE: FUEL OIL: 

OXYGEN: ACETYLENE: HYDROGEN: LIQUEFIED 

PETROLEUM GAS AND OTHER COMBUSTIBLES 

.2101 ELECTRICITY AND OTHER FUEL 

fa) — Sal e s of bottl e d gas. coal. cok e , fu e l oil. oxyg e n, 
ac e tyl e n e . — hydrog e n, — l iqu e fi e d — p e trol e um — gas; — er- — oth e r 
combustibl e s to us e rs or con s um e rs ar e subj e ct to th e four 
p e rcent stat e tax and any applicable local rat e of sal e s or us e 
tax e xc e pt thos e s al e s e x e mpt from tax und e r G.S. 105 161.13 
and thos e sal e s subj e ct to a low e r rat e of tax und e r G.S. 
105 16 4 . 4 . Th e gros s r e c e ipts d e riv e d by a uti l ity from s al e s 
of e l e ctricity and pip e d natura l ga s to u se r s ar e subj e ct to Stat e 



-the- 



-pep 



ion to whom th e 



tax^ — Th e tax rat e d e p e nd s 

e l e ctricity or pip e d natural gas i s sold and the purpo se for 

wh i ch it will b e us e d. — Gro s s r e c e ipts d e riv e d from s al e s of 



J 3:9 



NORTH CAROLINA REGISTER 



November 2, 1998 



771 



PROPOSED RULES 



e l e ctricity or pip e d natural gas to farm e rs, manufactur e rs, 
laundri e s, and dry cl e an e rs for on e of th e purpos e s d e scrib e d 
in G.S. 105 16 1 . 1 (a)(lf) ar e s ubj e ct to Stat e sal es tax at th e 
rat e of 2. 8 3 p e rc e nt. — All oth e r gro s s r e c e ipts from sal e s of 
electricity are subject to State sa l es tax at th e rat e of 3 p e rc e nt. 
Th e gr os s r ece ipt s d e ri ve d by a utility from sal e s of e l e ctricity 
and pip e d natural gas ar e not subj e ct to th e local s al e s or us e 
d e rived from the s al e of el e ctricity b\ a 



is a f e d e ral ag e ncy and who i s r e quir e d by contract with that 
f e d e ral ag e ncy to mak e paym e nt s in lieu of tax es ar e not 
subj e ct to tax. — Sales to a small power production facility of 
fu e l for u se by th e facility to g e n e rat e e l o ctricity are e x e mpt 
from sal e s or us e tax. 

(h) — Th e gross r e c e ipts d e ri\ e d b> a utility from sal es of 
pip e d natural gas ar e subj e ct to tax at th e applicable rat e . Th e 
tax is to b e add e d as a se parat e it e m to th e charg e s for pip e d 
natural gas. — Gros s r e c e ipts upon which th e tax is du e is th e 
total amount for which th e pip e d natural ga s i s sold, including 
any charges for s e n ic e s that go into th e production or d e liv e ry 
of th e gas and that are a part of the sale valu e d in mon e y. 
whether paid in mon e y or oth e rwis e , and including any amount 
for which cr e dit is giv e n to th e purchas e r by th e s e ll e r without 
any deduction on account of th e cost of gas sold, the cost of 
mat e rials us e d, l abor or service costs, int e r e st charg e d, loss e s, 
or any oth e r e xp e ns e whatso e v e r. — Th e r e for e all charg e s for 
tangible p e rsonal — prop e rty — and — s e n ic e s — p vid e d — m — the 
production and d e liv e ry of gas to th e purchas e r ar e a part o f 
th e sal e of piped natural gas upon which th e tax i s du e 
notwith s tanding that som e charg e s may b e bill e d s e parat e ly to 
th e custom e r for th e m e t e r e d s e n ic e . 

Th e following list d e scrib e s s p e cific charg es for pip e d natural 
gas and stat e s wh e th e r th e charg e s ar e taxabl e gross r e c e ipts: 

f-H A utility must r e port r e c e ipts from sal e s of pip e d 

natural gas on an accrual ba s is. Th e applicabl e tax 
must be s e parately — s tat e d on th e bill to e ach 
custom e r. A sal e by a uti l ity of pip e d natural gas is 



consid e r e d to accru e when the utilitv bi 



-the 



cu s tom e r for the sal e . Th e applicabl e tax is du e on 
gross r e c e ipts d e riv e d from th e sal e of pip e d natural 
gas without any d e duction for any franchis e tax th a t 
is du e . — Th e r e c e ipts must b e r e fl e ct e d on th e 
Utilit i es and Municipaliti e s Sal e s Tax R e port. Form 
E 500E. which is to b e fil e d monthly on or befor e 
th e dat e s e t in G.S. 105 161.16(c). 



(33- 



S e rvic e charges to custom e rs wh e n th e company 
first suppli e s ga s und e r any applicabl e rat e schedule 
ar e a part of gross r e c e ipts from sal e s of ga s sub je ct 
to tax 

(3} Th e amount s actually — charg e d to custom e r s for 

pip e d natural gas consum e d for th e billing p e riod ar e 
th e amount s on which th e tax is du e and tax i s to be 
charged notwithstanding that th e custom e r s may b e 
und e r e qual pay agr ee m e nts. 

(44 Charg es for r e conn e cting s e n ic e to custom e rs aft e r electricity 



{$) Sales of pip e d natural gas to a manufactur e r that 

e nt e r s into or b e com e s , an ingr e dient or compon e nt 
part of th e manufactur e d product ar e exempt from 
s al e s tax. m 

{&) Sal es of pip e d natural gas dir e ctly to the Unit e cT 

Stat e s Gov e rnm e nt or any ag e ncy ther e of ar e not 
s ubj e ct to s al e s tax. — In ord e r to b e a s al e to th e 
Unit e d — Stat e s — Gov e rnm e nt. — th« — Gov e rnment — ef 
ag e ncy involv e d must mak e th e purcha se of pip e d 
natural gas and pay — dir e ctly to the vendor the 
purchas e pric e of th e pip e d natural gas. — Whil e a 
utility' s — sales — dir e ctly — ie — the — Unit e d — Stat e s 
Gov e rnm e nt or an ag e ncy th e r e of are exempt from 
s al es tax. a utility must obtain a purchas e r e quisition 
on e tim e from each agency for its r e cords. 

(7-) Sales of piped natural ga s to r e gist e r e d utility 

compani e s for r e sal e ar e e x e mpt from sal e s tax 
wh e n th e sal e s ar e support e d by prop e rly completed 
C e rtificat e s of R e sal e . Form E - 500. 

{&) En e rgy audit amounts charged to custom e rs for a 

compreh e nsive en e rgy audit provid e d by a utility ar e 
not a part of gross r e c e ipts from sal es of pip e d 
natural gas subj e ct to s al es tax. 

{$) Lat e payment charges bill e d on a balance that was 

not paid on th e pr e vious month's bill ar e not a part 
of gross r e c e ipts of sal e s of pip e d natural gas subj e ct 
to sal es tax. 

-(4-6-* Return ch e ck charg e s for ch e ck s r e c e iv e d by a utility 

in paym e nt of an account and r e turn e d by th e bank ^ 
b e caus e of insuffici e nt funds ar e not a part of gro s d 
r e c e ipts from th e sal e of pip e d natural gas subject to 
sal e s tax. 

(444 Accounts of purchas e rs r e pr e s e nting taxabl e sal e s 

on which th e sa le s tax has b ee n paid that ar e found 
to b e worthl e ss and are actually charged off for 
incom e tax purpos e s may. at corr es ponding p e riods. 
b e d e duct e d from gross sal e s. — Any amount that is 
deducted and subs e qu e ntly coll e cted mu s t b e add e d 
to gross sal e s. 

-(45-) Local sal e s tax e s do not apply to gross r e c e ipts 

derived by a utility from sal e s of e l e ctricity. — Local 
sal e s tax e s apply to r e c e ipts from sal e s and l e as e s of 
tangibl e p e rsonal prop e rty that are subj e ct to th e 
four p e rc e nt stat e rat e of tax. 
fe-) — Sal e s of fu e l, oth e r than e l e ctricity and pip e d natural 
gas. for r e sid e ntial h e ating purpo ses ar e s ubj e ct to th e four 
p e rc e nt stat e tax and any applicabl e local sal e s or us e tax. 
Sal e s of coal in it s original stat e ar e e x e mpt from tax wh e n th e 






sales are mad e by th e produc e r, or th e produc e r's ag e nt, in th e 
capacity — of a produc e r and th e coal is d e liv e r e d to th e 
purchas e r directly from th e min e . 

(a) Electricity — Electricity is tangible personal property 
and jts sale is subject to tax at the rates set ]n G.S. 105-164.4. 
Local sales and use taxes do not apply to sales or purchases of 



se rvic e has b ee n terminat e d for nonpaym e nt ar e a 
part of gro ss rec e ipts from sal e s of pip e d natural gas 
subj e ct to s al e s tax. 



(b) Other Fuel. ~ Sales of bottled gas, coal, coke, fuel oil.^| 
oxygen, acerv lene. hydrogen, liquefied petroleum gas, or other 

combustibles to u sers or cons umer s are subje ct to the four 



"2 



SORTH CAROLINA REGISTER 



November 2, 1998 



13:9 



PROPOSED RULES 



percent State tax and the 2% local tax unless they are exempt 
from tax under G.S. 105-164.13 or subject to a lower rate of 
tax under G.S. 105-164.4. Sales of piped natural gas are 
exempt from sales tax and are subject to the excise tax 
imposed by Article 5E of G.S. 105. 

Authority- G.S. 105-164.4; 105-164.6; 105-164.13: 105- 
164.16; ' 105-262. 



TITLE 25 - OFFICE OF STATE PERSONNEL 

Notice is hereby given in accordance with G.S. 150B-21.2 
that State Personnel Commission the intends to adopt the 
rules cited as 25 NCAC IB .0354: U .0512; and amend the 
rules cited as 25 NCAC IB .0431 1H .0602, .0605-. 0606; U 
.0503. .0603. Notice of Rule-making Proceedings was 
published in the Register on September I. 1998. 

Proposed Effective Date: July 1. 1999 

A Public Hearing will be conducted at 10:00 a.m. on 
December 3. 1998 at the Administration Building. 3 rd Floor. 
Raleigh. NC. 

Reason for Proposed Action: The Office of State Personnel 
administers personnel regulations for dozens of state agencies 
employing thousands of state employees and their supervisors. 
Recruitment and selection procedures and grievance 
procedures are referred to every day in dozens of situations. 
Adherence to the notice and hearing requirements for the 
adoption of proposed rules submitted would potentially delay 
or defeat justice in grievance situations and would leave 
managers without rules to aid them in the proper 
implementation of this statute in the recruitment and selection 
process. 

Comment Procedures: Interested persons may present 
statements orally at the public hearing or in writing by mail 
addressed to Delores J. Stanley. Office of State Personnel. 116 
West Jones Street. Raleigh. NC 2 7603. 

Fiscal Note: These Rules do not affect the expenditures or 
revenues of state or local government funds. These Rules do 
not have a substantial economic impact of at least five million 
dollars (S 5. 000.000) in a 12-month period. 

CHAPTER 1 - OFFICE OF STATE PERSONNEL 

SUBCHAPTER 1 B - STATE PERSONNEL 
COMMISSION 



SECTION .0300 



CONTESTED CASE HEARING 
PROCEDURE 



.0354 TIME FRAME FOR RAISING ALLEGATION 
OF VIOLATION OF G.S. 126-14.2 



Allegations of a violation of G.S. 126-14.2 must be raised in 
a complaint to the Civil Rights Division of the Office of 
Administrative Hearings (OAH-CRD) within 30 days after the 
employee or applicant for initial employment receives written 
notice that a position for which the employee or applicant 
applied was filled. After an initial determination by the OAH- 
CRD that there is probable cause to believe that there has been 
a violation of G.S. 126-14.2. the employee or applicant must 
file a contested case petition pursuant to G.S. 126-14.2 and 
Article 3 of G.S. 150B within 15 days. 

Authority G.S. 126-14.2. 

SECTION .0400 - APPEAL TO COMMISSION 

.0437 APPEAL TO THE STATE PERSONNEL 
COMMISSION: PROCEDURES 

(a) The State Personnel Commission shall receive the 
record in the contested case forwarded by the Office of 
Administrative Hearings and make a final administrative 
decision in the case. The Office of State Personnel shall be 
responsible for the administrative management of contested 
cases coming before the Commission for its review and 
decision. 

(b) Oral Argument. Either party to a contested case may 
request the opportunity to appear before the State Personnel 
Commission and make oral argument, argument jn al] cases 
except those arising under G.S. 126-14.4. Such arguments 
shall be based solely on the information contained in the 
record submitted by the OAH. Oral arguments shall be 
requested in writing no more than 4-5 j_0 calendar days after 
notice of r e vi e w by the Commission has been sent to the 
parti es , parties that the Commission has received the official 
record from the OAH in the contested case. After 30 calendar 
davs have passed since the notice to the parties that the official 
record has been received by the Commission, the Commission 
shall send a The notice of review which shall contain the date, 
time and place of the Commission meeting at which the case 
shall be reviewed. If a party fails to request oral argument in a 
timely fashion, that party may not be allowed to present oral 
argument. Each party requesting oral argument shall be 
allotted a maximum of 44 JO minutes for the pr ese ntation. 
presentation, unless the time period is extended by a vote of 
the Commission. All requests to speak for more than 10 
minutes shall be made jn writing in the same document which 
requests the opportunity to make oral argument. The party 
which did not prevail before the Administrative Law Judge is 
entitled to make the first oral argument and to present a 
rebuttal. if both parties are seeking changes in the 
Administrative Law Judge's recommended decision, both 
parties may present a rebuttal and the party with the burden of 
proof in the contested case is entitled to the last rebuttal. 

(c) Briefs. Legal Memoranda. Attorney's Fees Requests. All 
briefs and legal memoranda in cases other than those arising 
under G.S. 126-14.4 shall be received by the Office of State 
Personnel no later than 4-0 working 30 calendar days prior to 
th e dat e of th e Commission m e eting for which a cas e is 
sch e dul e d for r e vi e w after the date of the notice sent bv the 



13:9 



NORTH CAROLINA REGISTER 



November 2, 1998 



773 



PROPOSED RULES 



be granted by the Administrator for good 



Commission notifying the parties of the Commission's receipt 
of the official record from the QAH. Such documents shall 
also be served upon the opposing party. Such a document 
received after the deadline shall be presented to the 
Commission only after the party has shown that the opposing 
party was served with the document at l e a s t 10 work i ng days 
before the Commis s ion m ee ting, no later than 30 calendar davs 
after the date of the notice sent by the Commission notifying 
the parties of the Commission's receipt of the official record 
from the QAH. Attorney's Fe e s fees R e qu es t s requests must 
be presented to the Commission by the prevailing party to a 
Commission Decision and Order at least one month before the 
meeting at which the matter is to be considered. Such requests 
must also be served upon the opposing party The 
Commission will notify the parties upon the receipt of a 
request for attorneys fees and provide an opportunity for the 
opposing party to file objections to the fees requested. If the 
parties wish to make oral argument on an attorney's fees 
request, a request for oral argument must be received by the 
Office of State Personnel within two weeks after the filing of 
the attorney's fees request and at least one month prior to the 
meeting at which such oral argument js requested. An 
extension of time to file documents with the Commission ma\ to file documents with the Commission ma\ be granted b\ the 



Commission ma\ 
cause shown. 

(e) Proposed Decision and Order. Each party to a contested 
case shall submit a proposed Decision and Order I'M 
consideration by the Commission in that case. The proposes 
Decision and Order shall be received by the Office of State 
Personnel no later than 1 working days prior to th e dat e of th e 
Commi s sion m ee ting for which a ca se is sch e duled for r e vi e w. 
30 calendar davs after the date of the notice sent by the 
Commission notifying the parties of the Commission's receipt 
of the official record from the QAH. The Commission may 
delay decision in a case until all parties have all parties have 
submitted a proposed Decision and Order. The proposed 
Decision and Order shall indicate which findings, conclusions, 
and recommendations of the Administrative Law Judge are 
being deleted or amended and why. and what new findings, 
and conclusions are being adopted. The proposed Decision and 
Order shall contain an order in the case for the signature of the 
Administrator to the Commission, consistent with and 
supported by the findings and conclusions. Parties shall 
submit 4-0 20 copies of each pleading (with three holes in the 
left margin) filed with the Commission. An extension of time 



be granted bv the Administrator for good cause shown. 

(d) Written Exceptions. Proposed Alternative Findings. 
Conclusions and Recommendations. Each part) shall submit 
written exceptions to the recon '■ended decision of the 
Administrative Law Judge, unless the party accepts the 
recommended decision in its entirety. Any party may choose 
to submit proposed alternative findings of fact and conclusions 
of law. Exceptions and alternative findings and conclusions 
shall be received by the Office of State Personnel no later than 
10 working day s prior to th e dat e of th e Commission for which 
a cas e i s sch e dul e d for review. 30 calendar davs after the date 
of the notice sent by the Commission notifying the parties of 
the Commission's receipt of the official record from the QAH. 
Written exceptions shall be specifically drawn. Exceptions 
shall indicate which finding, conclusion, or recommendation is 
being excepted to and the basis for the exception being taken. 
Reference must be made to the transcript (and volumes, where 
applicable), if the transcript of the hearing was made. Where a 
part) excepts to a finding, conclusion, or recommendation and 
requests its deletion or amendment, an alternative finding, 
conclusion, or recommendation shall be made. Such a 
document received after the deadline shall be presented to the 
Commission only after the parry has shown that the opposing 
party was served with the document at l e ast 10 working day s 
b e for e th e Commission meeting, no later than 30 calendar davs 
after the date of the notice sent bv the Commission notifying the official record from the Office of Administrative Hearings. 
the parties of the Commission's receipt of the official record 
from the QAH. The Commission shall have the authority to 
adopt the findings of fact and conclusions of the 
Administrative Law Judge, or to amend the same, or to adopt 
alternative findings of fact and conclusions of law. either from 
those submitted by the parties or drawn from its own review of 
the whole record. Parties shall submit 4-0 20 copies of each 
pleading (with three holes in the left margin) filed with the 
Commission. An extension of time to file documents w ith the 



Administrator for good cause shown. 

(f) Service on Opposing Parties. Copies of all documents 
required by this Rule shall be served on the opposing party, 
but no later than 1 working days prior to th e dat e of th e 
Commission meeting for which a cas e is sch e dul e d for r e vi e w. 
30 calendar davs after the date of the notice sent by the^. 
Commission notifying the parties of the Commission's receirjB ; 
of the official record from the QAH. 

(g) Notification. The parties or when applicable, the legal 
representative of record for a parry, shall be notified, by 
certified mail, return receipt requested, of the Commission's 
decision. The Commission's decision shall be prepared and 
sent out by the Office of State Personnel. Copies or the content 
of a specific decision and order shall not be released to non- 
parties until the Office of State Personnel has knowledge that 
all parties have received a copy of the Decision and Order. 

(h) Cases arising under G.S. 126-14.4. in contested cases 
arising under G.S. 126-14.4. where the Commission is 
required to make a decision within 60 davs of receipt of the 
official record, the parties shall not be entitled to appear m 
person before the Commission and make oral argument. 
Instead, either party may request an opportunity to make oral 
argument to the Commission jn a teleconference (or by other 
video or audio electronic conferencing means) within 10 
calendar davs of notice bv the Commission that it has received 



If a party requests the opportunity to present oral argument ]n a 
teleconference, a teleconference shall be scheduled by the 
Office of State Personnel and a Notice of Rev jew via Tele- 
conference shall be sent to the parties which shall contain the 
date and time the teleconference will take place and the 
telephone numbers at which the parties will be called. N 
delays in scheduling the teleconference will be permitte 



Ntm 
tgdB 



which would prejudice the Commission's ability to render its 
w ritten decision |n compliance with the statutory 60-dav 






774 



\ORTH CAROL 1 \A REGISTER 



November 2, 1998 



13:9 



PROPOSED RULES 



deadline. Any briefs or legal memoranda which the parties 
wish to submit must be received by the Office of State 
Personnel no later than 14 calendar days after notic e that the 
Commission has received the official record from the Office of 
Administrative Hearings. An extension of time to file 
documents with the Commission may be granted by the 
Administrator for good cause shown. Each party requesting 
oral argument shall be allotted a maximum of J_0 minutes for 
the presentation, unless the time period is extended by a vote 
of the Commission. All requests to speak for more than 10 
minutes shall be made in writing ]n the same document which 
requests the opportunity to make oral argument. The parts 
which did not prevail before the Administrative Law Judge is 
entitled to make the first oral argument and to present a 
rebuttal. If both parties are seeking changes m the 
Administrative Law Judge's recommended decision, both 
parties may present a rebuttal and the party with the burden of 
proof in the contested case is entitled to the last rebuttal. 

Authority G.S. 126-4. 

SUBCHAPTER 1H - RECRUITMENT AND 
SELECTION 



SECTION .0600 - GENERAL PROVISIONS 

.0602 POSTING AND ANNOUNCEMENT OF 
VACANCIES 

(a) All agencies shall select from the most qualified persons 
to fin vacant positions. Employment shall be offered based 
upon the job-related qualifications of applicants for 
employment using fair and valid selection criteria 2nd not on 
political affiliation or political influence. For pur poses of this 
policy, "political affiliation" is the membership in, 
participation in. or support of. a particular political party, 
group, or candidate; "political influence" occurs when political 
affiliation impacts the decision to hire or not to hire and the 
selection decision was not based on fair and valid selection 
criteria. 

fa-Hb) Vacant positions to be filled in state government shall 
be publicized by the agency having the vacancy to permit an 
open opportunity for all interested employees and applicants to 
apply. The term "agency" as used in this Paragraph includes all 
state departments, institutions, commissions, and boards. The 
recruitment and selection process shall be consistently applied, 
non-discriminatorv and promote open and fail competition and 
the hiring of a diverse workforce. 

fb)(c) Vacancies which shall be filled from within the 
agency workforce shall have an application period of not less 
than five working days and shall be prominently posted in at 
least the following locations: 

( 1 ) The personnel office of the agenc\ having the 
vacancy: and 

(2) The particular work unit of the agency having the 
vacancy. 

fe-Md) If the decision is made, initially or at any time a 
vacancy remains open, to receive applicants from within the 
overall state government workforce, that vacancy shall be 



listed with the Office of State Personnel for the purpose of 
informing current state employees of the opening. Such 
vacancies shall have an application period of not less than 
seven working days from the time the listing is received by the 
Office of State Personnel. Each vacancy for internal posting 
or listing with the Office of State Personnel will be described 
in an announcement which includes at minimum the position 
number, title, salary range, key duties, essential functions , 
knowledge and skill requirements, minimum e ducation training 
and experience standard, the application period and the 
appropriate contact person. Each vacancy listing must include 
a closing date unless the classification has been determined as 
critical. Factors used in determining critical classifications 
shall include: agency turnover; number of positions in class; 
geographic location; scarcity of skills; safety, health or quality 
of care for clients. Such critical classifications, which will not 
require closing dates on vacancy postings, shall be approved 
by the State Personnel Commission. On those classes 
determined to be critical, which are considered open, 
continuous postings, agencies shall determine how long 
applications will be considered active. Posting requirements 
shall not apply to: 

( 1 ) Vacancies which must be used to meet management 
necessity, for which an agency will not openly 
recruit. Examples include vacancies committed to a 
budget reduction, vacancies used for disciplinary 
transfers or demotions, use of an existing vacancy to 
avoid reduction in force, and transfer of an 
employee to an existing opening to avoid the threat 
of bodily harm, harm, and th e promotion of an 
e mp l oy ee into an op e ning und e r a formal, pr e 
e xisting "und e rstudy arrang e ment" . 

(2) Vacancies for positions which have been designated 
po l icy making exempt policy-making under G.S. 
126-5(d). 

(3) Vacancies which must be filled immediately to 
prevent work stoppage in constant demand 
situations, or to protect the public health, safety, or 
security. 

(44 Vacancies which are not fi l led by open r e cruitment, 
but rather by specific and targ e t e d r e cruitm e nt of 
sp e cial groups for th e Mod e l Coop e rativ e Education 
and stat e gov e rnm e nt int e rn programs. 
f§-)(4) Vacancies for positions to be filled by chief deputies 
and chief administrative assistants to elected or 
appointed department heads; and vacancies for 
positions to be filled by confidential assistants and 
confidential secretaries to elected or appointed 
department heads, chief deputies, or chief 
administrative assistants. The decision to exercise a 
vacancy posting exception based upon Paragraphs 
(b)£d)(l) and (3) of this Rule shall be the 
responsibility of the agency head. The Office of 
State Personnel is available upon request to provide 
counsel and guidance in instances of uncertainty. 



13:9 



NORTH CAROLINA REGISTER 



November 2, 1998 



775 



PROPOSED RULES 



fd-He) Any vacancy for which an agency wishes to consider 
outside applicants or outside applicants concurrently with the 
state government work force shall be listed simultaneously 
with the appropriate Employment Security Commission office, 
as required by G.S. 96-29, and with the Employment Practices 
and Priorities Divi s ion Section of the Office of State 
Personnel. Listings will include the appropriate announcement 
information and vacancies so listed shall have an application 
period of not less than seven work days. 

fe4(f) If an agency makes an initial effort to fill a vacancy 
from within the state government work force only, and is 
unsuccessful, the listing with the Employment Security 
Commission would take place when a decision is made to 
recruit outside. A vacancy which an agency will not fill for 
any reason should not be listed; if conditions change, it should 
then be treated as a new vacancy. 

ft- Mg) The Office of State Personnel may withhold approval 
for an agency to fill a job vacancy if the agency cannot prove 
to the satisfaction of the Office of State Personnel that it 
complied with these posting requirements. If any agency hires 
any person in violation of these posting requirements, and it is 
determined by the Office of State Personnel that the 
employment of the person hired must be discontinued as a 
result of the posting violation, the agency shall pay such 
person for the work performed during the period of time 
between his her initial employment and separation. 

fg-Hh) When a vac icy is listed with the Employment 
Security Commission, the listing agency may not fill the job 
opening for at least 2 1 days after the listing has been filed and 
the local office with which the listing is made shall be notified 
by the agency within 15 days after the vacancy is filled. Upon 
agency request the Employment Security Commission may 
waive the waiting period for filling listed vacancies in job 
classifications for which the State Personnel Commission has 
recognized candidates are in short supply if it hinders the 
agency in providing essential services. 

Authority G.S. 96-29: 126-4(4): 126-5(d); 126-7.1. 

.0605 SPECIAL APPLICANT CONSIDERATIONS: 
AGENCY RESPONSIBILITIES 

(a) Priority Reemployment Consideration. State employees: 

( 1 ) who have received notification of imminent 
separation due to reduction in force: or 

(2) who have been removed from a policy 
mak i ng s confidential exempt positions, for reasons 
other than caus e cause, or who have been removed 
from managerial exempt positions for reasons other 
than cause but not for a violation of G.S. 126-14.2; 
oi 

(3) who have been removed from an exempt managerial 
position for a violation of G.S. 126-14.2; 

are afforded priority reemployment consideration under the 
State Personnel Act. A list of all classes having applicants 
with priority status will be sent to all agencies by the Office of 
State Personnel and will be updated frequently. When a 
vacancy occurs, the appointing authority must review the latest 
list before initiating am recruiting efforts. If the classification 



of the vacancy appears, a priority certificate must be requested 
and the appropriate priority afforded. While in most instances 
priority applicants will be on a priority certificate for classes of 
their principal qualification, these applicants are free to applw 
for any vacancy of their choice. If determined qualified, 
regardless of whether they are currently on a priority certificate 
for the class of the vacancy, the priority must be afforded. 

(b) Veteran's Preference. State law requires that 
employment preference be given to veterans, widows of 
veterans, and wives of disabled veterans. Persons entitled to 
such preference must so indicate on any application filed. 
Verifying documentation may be required by the agency if 
desirable. 

(c) Age Limitations. 

(1) Minimum Age - The minimum employment age is 
18. Exceptions are provided under the law if the 
employing agency procures an Employment 
Certificate from the County Social Services 
Department. 

(2) Law Enforcement Officers - Law enforcement 
officers must be at least 2 1 years of age. 

(3) Maximum Age - There is no maximum age for 
employment. 

(d) Employment of Relatives. Members of an immediate 
family shall not be employed within the same agency if such 
employment will result in one member supervising another 
member of his immediate family, or if one member will occupy 
a position which requires influence over another member's 
employment, promotion, salary administration and other^ 
related management or personnel considerations. The intent of^/ 
this provision is to avoid an employment relationship which 
would create problems within a work unit or offend the public 
sense of equal opportunity. The term immediate family 
includes wife, husband, mother, father, brother, sister, son, 
daughter. grandmother. grandfather. grandson and 
granddaughter. Also included are the step-, half- and in-law 
relationships based on the listing in this Paragraph. It might 
also include others living within the same household or 
otherwise so closely identified with each other as to suggest 
difficulty. 

Authority G.S. 126-4(4): 128-15. 

.0606 SELECTION OF APPLICANTS 

(a) The selection of applicants for vacant positions will be 
based upon a relative consideration of their qualifications for 
the position to be filled. Using fair and valid selection criteria, 
the agency will review the credentials of each applicant and 
determine who possesses the minimum qualifications. From 
those applicants who meet the minimum qualifications, a pool 
of the most qualified candidates shall be identified. The pool 
of the most qualified candidates shall be those individuals 
determined to be substantially more qualified than other 
applicants. The individual selected for the position must be 
chosen from the pool of the most qualified applicants. Ini 
making the determination of minimally qualified and most' 
qualified, policies r egar ding pri ority consideration must be 
applied. Advantage will be given to applicants determined to 



776 



SORTH CAROLINA REGISTER 



November:, 1998 



13:9 



PROPOSED RULES 



be most qualified and hiring authorities must reasonably 
document hiring decisions to verify this advantage was granted 
and explain their basis for selection. 

(b) Selection procedures and methods will be validly related 
to the duties and responsibilities of the vacancy to be filled. 
The Office of State Personnel will provide technical 
assistance, upon request, to agencies wishing to design or 
review selection procedures. 

(c) After making the selection decision, the agency shall 
provide timely written notice of non-selection of all 
unsuccessful candidates in the most qualified pool- 
Id) Each agenc\ shall develop a written Recruitment and 

Selection Plan according to guidelines provided by the Office 
of State Personnel. The Recruitment and Selection Plan 
should meet the particular needs of the agency and provide 
assurances to employees and applicants that the recruitment 
and selection process will be based on fair and valid selection 
criteria. Agency Recruitment and Selection Plans shall be 
submitted to the Office of State Personnel for review and 
approval by the State Personnel Commission. Anv changes or 
additions to agency Recruitment and Selection Plans shall also 
be submitted to the Office of State Personnel for review and 
approval by the State Personnel Commission. Those agencies 
not having a Recruitment and Selection Plan on file and 
approved by the State Personnel Commission shall follow the 
process set forth in the Office of State Personnel's 
Recruitment and Selection Plan. 

Authority- G.S. 126-4(4). 

SUBCHAPTER U - EMPLOYEE RELATIONS 

SECTION .0500 - EMPLOYEE GRIEVANCES 

.0503 MINIMUM PROCEDURAL REQUIREMENTS 

The following provisions are the minimum requirements for 
approval bv the State Personnel Commission. 

(1) An employee with a grievance that does not allege 
unlawful discrimination as defined by G.S. 126-16 
or G.S. 126-36. that does not allege a violation of 
G.S. 126-7.1(a) or (c). G.S. 126-82. or that does not 
allege a denial of employment or promotion in 
violation of G.S. 126-14.2 shall be required to first 
discuss the problem with the immediate supervisor. 
Where the grievance does not fall within the 
administrative or decision-making authority of the 
immediate supervisor, the immediate supervisor, 
shall within 48 hours of receipt of the grievance, 
refer the grievance to the lowest level supervisor 
with administrative or decision-making authority 
over the subject matter of the grievance and notify 
the employee of the fact of and the basis for the 
referral. The agency grievance procedure must 
outline those issues in addition to contested case 
issues under G.S. 126-34.1. if anv. that are grievable 
under each agency's internal grievance procedure 
and whether and to what extent persons who have 
not attained career status under G.S. 126 1A 126-1.1 



may utilize the agency grievance procedure. 

(2) The employee shall have the right to have the 
derision of the immediate supervisor reviewed. The 
step or steps after the immediate supervisor's step 
must include a step at which the employee has the 
right to orally present the grievance and where the 
reviewer is outside the employee's chain of 
command. 

(3) Any decision rendered after the step of the 
supervisor's decision shall be issued in writing and 
the final agency decision shall be issued within a 
reasonable period of time as defined in this Section. 

(4) At the step involving the reviewer (person or body) 
outside the employee's chain of command, the 
employee shall have the right to challenge whether 
the reviewer can render an unbiased decision. The 
agency grievance procedure shall establish a process 
for challenging the reviewer's impartiality and the 
process for the selection of a replacement when 
necessary. 

(5) For matters that are contested case issues under G.S. 
126-34.1. if the employee is not satisfied by the final 
decision of the agency head, the employee shall have 
the right to appeal to the State Personnel 
Commission within 30 days of receipt of the final 
agency decision. If the employee is unable within a 
reasonable period of time to obtain a final agency 
decision, the employee's right of appeal is governed 
by G.S. 150B-23(f)~ 

(6) The agency shall state the methods of notifying 
current employees and newly appointed employees 
of any change to the agency grievance procedure no 
la'.er than 30 days prior to the effective date of the 
change. 

(7) The agency shall establish the time limit for the 
agency and employee to respond at each step in the 
grievance procedure. No time limit for an agency to 
respond or to act shall be more than twice the time 
limit for the employee. 

(8) The grievance procedure shall include the effective 
date of the procedure and of any changes to the 
procedure. 

(9) The grievance procedure shall comply with the 
requirements of 25 NCAC U .0615. 

Authority G.S. 126-4(9); 126-4(10): 126-35; 150B-23. 

.0512 VIOLATIONS OF G.S. 126-14.2 

(a) A state employee or applicant for initial State employee 

may complain directly through the Civil Rights Division of the 

Office of Administrative Hearings about a denial of 

employment or promotion if al] the following conditions apply : 

( 1 ) the person alleging the violation applied for the 

position [n question during the open application 

period: 

the person alleging the violation was not hired into 

the position in question; 

the person allegin g the violation was among the pool 



121 
01 



13:9 



NORTH CAROLINA REGISTER 



November 2, 1998 



777 



PROPOSED RULES 



of the most qualified applicants; 

(4) the successful applicant for the position was not 
among the pool of the most qualified applicants; and 

(5) the hiring decision was ]n violation of G.S. 126-14,2 
because of political affiliation or political influence. 

(b) The complaining State employee or applicant must file 
their comp laint with the Civil Rights Division of the OAH 
within 30 days after the complainant receives written notice 
that the position in question has been filled. 

(c) Upon an initial determination by the Civil Rights 
Division of the OAH that there is probable cause to believe 
that there has been a violation of G.S. 126-14.2, the 
complaining State employee or applicant may file, pursuant to 
G.S. 126-34.1 and Article 3 of OS, 1 50B, a petition for a 
contested case hearing with the OAH Contested Case Division 
within 15 days. 

(d) The administrative law judge shall issue a recommended 
decision to the State Personnel Commission. The State 
Personnel Commission shall make a final written decision ]n 
accordance w ith the law. 

(ej l_f the initial determination by the Civil Rights Division 
of the OAH is that there is no probable cause to believe that 
there has been a violation of G.S. 126-14.2, that determination 
shall be conclusive of any rights of further appeal to the State 
Personnel Commission, but shall not be admissible or binding 
in any separa 'e or subsequent civil action or proceeding. 

Authority- G.S. 126-4. 

SECTION .0600 - DISCIPLINARY ACTION: 
SUSPENSION AND DISMISSAL 

.0603 APPEALS 

(a) A career employee who has been demoted, suspended or 
dismissed shall have 15 calendar days from the date of his 
receipt of written notice of such action to file an appeal with 



his department/university grievance procedure. Grievances 
which do not allege discrimination a violation of G.S. 126- 
7.1(a) or [c_L G.S. 126-82, or that do not allege a denial of 
employment or promotion in violation of G.S. 126-14.2 must! 
follow the department or university grievance procedure. An 
appeal of a final departmental or university decision must be 
filed in accordance with G.S. 150B-23 and within 30 calendar 
days of receipt of the final agency decision. 

(b) Grievances which allege discrimination may. at the 
election of the employee, proceed through the department or 
university procedure or proceed directly to the State Personnel 
Commission (SPC) for a hearing by the Office of 
Administrative Hearings (OAH) and a decision by the SPC. A 
direct appeal to the SPC (such appeal involving a contested 
case hearing by the OAH and a recommended decision by that 
agency to the SPC) alleging discrimination must be filed in 
accordance with G.S. I50B-23 and must be filed within 30 
calendar days of receipt of notice of the alleged discriminatory 
act. 

(c) Grievances which allege a violation of G.S. 126-14.2 
must be filed with the Civil Rights Division of the OAH within 
30 calendar days after the employee or applicant receives 
written notice that the position in question has been filled. The 
employee or applicant must file a petition for a contested case 
hearing pursuant to G.S. 126-34.1 and Article 3 of G.S. 150B 
within 15 davs of the initial determination by the OAH Civil 
Rights Division that there has been a violation of G.S. 126- 
14.2. 

fe)(d) Grievances filed on an untimely basis (see G.S. 126- * 
14.4, G.S. 126-35. G.S. 126-36 and G.S. 126-38) must be ■ 
dismissed. Allegations of discrimination raised more than 30 
calendar days after receipt of notice of the occurrence of the 
alleged discriminatory act must be dismissed. 

Authority G.S. 126-1 A: 126-35: 126-36: 126-38: 150B, Article 
3: 150B-23. 



778 



NORTH CAROLINA REGISTER 



November 2, 1998 



13:9 



APPROVED RULES 



This Section includes the Register Notice citation to Rules approved by the Rules Review Commission <RRC) at its meeting 
of July 23, 1998 pursuant to G.S. 150B-21. 17(a)(1) and reported to the Joint Legislative Administrative Procedure 
Oversight Committee pursuant to G.S. 150B-21.16. The full text of rules are published below when the rules have been 
approved by RRC in a form different from that originally noticed in the Register or when no notice was required to be 
published in the Register. The rules published in full text are identified by an * in the listing of approved rules. Statutoiy 
Reference: G.S. 1508-21.17. 

These rules unless otherwise noted, will become effective on the 31st legislative day of the 1998 Short Session of the General 
Assembly or a later date if specified by the agency unless a bill is introduced before the 31st legislative day that specifically 
disapproves the rule. If a bill to disapprove a rule is not ratified, the rule will become effective either on the day the bill 
receives an unfavorable final action or the day the General Assembly adjourns. Statutoiy reference: G.S. 150B-21.3. 



APPROVED RULE CITATION 



REGISTER CITATION TO THE 
NOTICE OF TEXT 



10 


NCAC 


14G 


.0102* 


10 


NCAC 


21B 


.0117 


10 


NCAC 


26H 


.0102 


10 


NCAC 


26H 


.0211 


10 


NCAC 


26H 


.0401 


10 


NCAC 


41A 


.0107* 


15A 


NCAC 


10F 


.0305 


15A 


NCAC 


10F 


.0311 


15A 


NCAC 


10F 


.0317 


15A 


NCAC 


10F 


.0327* 


15A 


NCAC 


10G 


.0404* 


15A 


NCAC 


18A 


.3103 


15A 


NCAC 


18A 


.3104* 


15A 


NCAC 


18A 


.3106* 


15A 


NCAC 


18A 


.3107* 


15A 


NCAC 


18A 


.3110* 


15A 


NCAC 


18A 


.3111 


21 


NCAC 


14A 


.0104* 


2d 


NCAC 


04 


.0202* 


TITLE 10 


- DEPARTMENT OF H 



12:19 NCR 1766 

12:17NCR1616 

12:18 NCR 1696 

12:18 NCR 1700 

12:21 NCR 1878 

12:15 NCR 1420 

12:16NCR 1518 

12:17NCR 1608 

12:17NCR 1608 

12:17NCR 1608 

12:12 NCR 1044 

12:20 NCR 1831 

12:20 NCR 1832 

12:20 NCR 1833 

12:20 NCR 1834 

12:20 NCR 1835 

12:20 NCR 1835 

not required. G.S. 150B-2 1.5(a)(4) 

not required, G.S. 150B-2 1.5(a)(3) 



HUMAN SERVICES 

CHAPTER 14 - MENTAL HEALTH: GENERAL 

SUBCHAPTER 14G - COMMITTEES AND 

PROCEDURES (2) 

SECTION .0100 - PURPOSE: SCOPE: DEFINITIONS 

0102 DEFINITIONS 

(a) In addition to the definitions contained in this Rule, the 
terms defined in G.S. 122C-3. 122C-4 and 122C-53(f) also 
apply to all rules in Subchapters 14G. 14H. 141. and 14J of 

this Chapter. (3) 

(b) As used in the rules in Subchapters 14G. 14H. 141 and 

14J of this Chapter, the following terms have the meanings (4) 

specified: 

( 1 ) "Abuse" means the infliction of physical or mental 
pain or injury by other than accidental means, or 



unreasonable confinement, or the deprivation by an 
employee of services which are necessary to the 
mental and physical health of the client. Temporary 
discomfort that is part of an approved and 
documented treatment plan or use of a documented 
emergency procedure shall not be considered abuse. 
"Basic necessities" means the essential items or 
substances needed to support life and health which 
include, but are not limited to. a nutritionally sound 
diet balanced during three meals per day. access to 
water and bathroom facilities at frequent intervals, 
seasonable clothing, medications to control seizures, 
diabetes and other like physical health conditions, 
and frequent access to social contacts. 
"Client record" means any record made of 
confidential information. 

"Clinically privileged" means authorization by the 
State Facility Director for a qualified professional to 
provide specific treatmentliabilitation services to 
clients, within well-defined limits, based on the 



13:9 



NORTH CAROLINA REGISTER 



November 2, 1998 



779 



APPROVED RULES 



professional's education, training, experience, 
competence and judgment. 

(5) "Complaint" means an informal verbal or written 
expression of dissatisfaction, discontent, or protest 
by a client concerning a situation within the 
jurisdiction of the state facility. A complaint would 
usually but not necessarily precede a grievance. 

(6) "Consent" means concurrence by a client or his 
legally responsible person following receipt of 
sufficient information by the qualified professional (16) 
who will administer the proposed treatment or 
procedure. Informed consent implies that the client 

or his legally responsible person was provided with 
sufficient information concerning proposed (17) 

treatment, including both benefits and risks, in order 
to make an educated decision with regard to such 
treatment. (18) 

(7) "Dangerous articles or substances" means, but is not 
limited to. any weapon or potential weapon, heavy 
blunt object, sharp objects, potentially harmful 
chemicals, or drugs of any sort, including alcohol. 

(8) "Deputy Director" means a member of the 
management staff of the Division with responsibility 

for the state facilities relative to a specific disability (19) 

area. Such directors may include the Deputy 
Director of Mental Health. Deputy Director of 
Mental Retardation. Deputy Director of Substance (20) 

Abuse, or such deputy's designee. 

(9) "Director of Clinical Services" means Medical 
Director. Director of Medical Services or such 
person acting in the position of Director of Clinical 
Services, or his designee. 

(10) "Division Director" means the Director of the 
Division or his designee. 

(11) "Emergency" means a situation in a state facility in 
which a client is in imminent danger of causing 
abuse or injury to self or others, or when substantial 
property damage is occurring as a result of 
unexpected and severe forms of inappropriate 
behavior, and rapid intervention by the staff is 
needed. [See Subparagraph (b)(22) of this Rule for 
definition of medical emergency]. (21 ) 

(12) "Emergency surgery" means an operation or surgery 
performed in a medical emergency [as defined in 
Subparagraph (b)(22) of this Rule] where informed 
consent cannot be obtained from an authorized 

person, as specified in G.S. 90-21.13. because the (22) 

delay would seriously worsen the physical condition 
or endanger the life of the client. 

(13) "Exclusionary 1 time-out" means the removal of a 
client to a separate area or room from which exit is 
not barred for the purpose of modifying behavior. 

(14) "Exploitation" means the use of a client or his 
resources for another person's profit, business or (23) 
advantage. "Exploitation" includes borrowing. 

taking or using personal property from a client with 
or w ithout the client's permission. 

(15) "Forensic Division" means the inpatient facility at 



Dorothea Dix Hospital which serves clients who are: 
(A) admitted for the purpose of evaluation for 

capacity to proceed to trial: 

found nol guilty by reason of insanity: A 



(B) 

(C) 



determined incapable of proceeding to trial; 

or 
(D) deemed to require a more secure environment 

to protect the health, safety and welfare of 

clients, staff and the general public. 
"Grievance" means a formal written complaint by or 
on behalf of a client concerning a circumstance 
would usually but not necessarily follow a 
complaint. 

"Human Rights Committee" means a committee, 
appointed by the Secretary, to act in a capacity 
regarding the protection of client rights. 
"Independent psychiatric consultant" means a 
licensed psychiatrist not on the staff of the state 
facility in which the client is being treated. The 
psychiatrist may be in private practice, or be 
employed by another state facility, or be employed 
by a facility other than a state facility as defined in 
G.S. 122C-3(14). 

"Interpreter services" means specialized 
communication services provided for the hearing 
impaired by certified interpreters. 
"Involuntary client" means a person admitted to any 
regional psychiatric hospital or alcoholic 
rehabilitation center under the provisions of Article^ 
5. Parts 7. 8 or 9 of G.S. 122C and includes but it isf) 
not limited to clients detained pending a district 
court hearing and clients involuntarily committed 
after a district court hearing. This term shall also 
include individuals who are defendants in criminal 
actions and are being evaluated in a state facility for 
mental responsibility or mental competency as a part 
of such criminal proceedings as specified in G.S. 
15A-1002 unless a valid order providing otherwise 
is issued from a court of competent jurisdiction and 
the civil commitment of defendants found not guilty 
by reason of insanity as specified in G.S. 15A-1321. 
"Isolation time-out" means the removal of a client to 
a separate room from which exit is barred but which 
is not locked and where there is continuous 
supervision by staff for the purpose of modify ing 
behavior. 

"Major physical injury " means damage caused to the 
body resulting in substantial bleeding or contusion 
of tissues: fracture of a bone: damage to internal 
organs: loss of consciousness: loss of normal 
neurological function (inability to move or 
coordinate movement): or am other painful 
condition caused by such injury. 
"Medical emergency" means a situation where the 
client is unconscious, ill. or injured, and the a 
reasonably apparent circumstances require prompt w 
decisions and actions in medical or other health care, 
and the necessity of immediate health care treatment 



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is so reasonably apparent that any delay in the 
rendering of the treatment would seriously worsen 
the physical condition or endanger the life of the 
client. 

(24) "Minimal risk research" means that the risks of harm 
anticipated in the proposed research are not greater, 
considering probability and magnitude, than those 
ordinarily encountered in daily life or during the 
performance of routine physical or psychological 
examinations or tests. 

(25) "Minor client" means a person under 18 years of age 
who has not been married or who has not been 
emancipated by a decree issued by a court of 
competent jurisdiction or is not a member of the 
armed forces. 

(26) "Neglect" means the failure to provide care or (34) 
services necessary to maintain the mental health, 
physical health and well-being of the client. 

(27) "Neuroleptic medication" means a category of (35) 
psychotropic drugs used to treat schizophrenia and 

related disorders. Neuroleptics are the only category 
of psychotropic drugs with long-term side effects of (36) 

major consequence (e.g.. tardive dyskinesia). 
Examples of neuroleptic medications are 
Chlorpromazine. Thioridazine and Haloperidol. (37) 

(28) "Normalization" means the principle of helping the 
client to obtain an existence as close to normal as 
possible, taking into consideration the client's 
disabilities and potential, by making available to him 
patterns and conditions of everyday life that are as (38) 
close as possible to the norms and patterns of the 
mainstream of society. 

(29) "Person standing in loco parentis" means one who 

has put himself in the place of a lawful parent by (39) 

assuming the rights and obligations of a parent 
without formal adoption. 

(30) "Protective devices" means an intervention which 
provides support for weak and feeble clients or 
enhances the safety of behaviorally disordered (40) 
clients. Such devices may include posey vests, 
geri-chairs or table top chairs to provide support and 

safety for clients with major physical handicaps: 
devices such as helmets and mittens for (41) 

self-injurious behaviors: or devices such as soft ties 
used to prevent medically ill clients from removing 
intravenous tubes, indwelling catheters, cardiac 
monitor electrodes, or similar medical devices. 

(31) "Psychosurgery" means surgical procedures for the 
intervention in or alteration of a mental, emotional 
or behavior disorder. 

(32) "Psychotropic medication" means medication with 
the primary function of treating mental illness, 
personality or behavior disorders. It includes, but is 
not limited to. antipsychotics, anti-depressants, 
minor tranquilizers and lithium. 

(33) "Qualified professional" means any person with (42) 
appropriate training or experience in the 
professional fields of mental health care, mental 



illness, mental retardation, or substance abuse, 
including but not limited to. physicians, 
psychologists, social workers, registered nurses, 
qualified mental retardation professionals and 
qualified alcoholism or drug abuse professionals, as 
these terms are defined in 10 NCAC 14K .0103. 
"Licensure Rules for Mental Health. Mental 
Retardation and Other Developmental Disabilities, 
and Substance Abuse Facilities", division 
publication APSM 40-2. In addition, qualified 
professionals shall include special education 
instructors. physical therapists, occupational 
therapists, speech therapists and any other 
recognized professional group designated by the 
State Facility Director. 

"Regional alcoholic rehabilitation center" means a 
state facility for substance abusers as specified in 
G.S. 122C-181(a)(3). 

"Regional mental retardation center" means a state 
facility for the mentally retarded as specified in G.S. 
122C-1 81(a)(2). 

"Regional psychiatric hospital" means a state facility 
for the mentally ill as specified in G.S. 
122C-181(a)(l). 

"Representative payee" means the person, group, or 
facility designated by a funding source, such as 
Supplemental Security Income (SSI), to receive and 
handle funds according to the guidelines of the 
source on behalf of a client. 

"Research" means inquiry involving a trial or special 
observation made under conditions determined by 
the investigator to confirm or disprove an hypothesis 
or to explicate some principle or effect. 
"Respite client" means a client admitted to a mental 
retardation center for a short-term period, normally 
not to exceed 30 days. The primary purpose of such 
admission is to provide a temporary interval of rest 
or relief for the client's regular caretaker. 
"Responsible professional" shall have the meaning 
as specified in G.S. 122C-3 except the "responsible 
professional" shall also be a qualified professional 
as defined in Subparagraph (b)(32) in this Rule. 
"Restraint" means the limitation of one's freedom of 
movement. In accordance with G.S. 122C-60. 
restraint includes the following: 

(A) mechanical restraint which is restraining a 
client with the intent of controlling behavior 
with mechanical devices which include, but 
are not limited to. cuffs, ankle straps, sheets 
or restraining shirts. This does not include 
handcuffs used for the purpose of escorting 
forensic clients: 

(B) physical restraint which is restraining a client 
by physically holding or subduing the client 
until he is calm. 

"Seclusion" means isolating a client in a separate 
locked room for the purpose of controlling a client's 
behavior, except that in the Forensic Division at 



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November 2, 1998 



781 



APPROVED RULES 



Dorothea Dix Hospital, seclusion shall not include 
the routine use of locked rooms, isolation of clients 
admitted for evaluation of capacity to proceed to 
trial who are considered to be an escape risk, or 
separation of juveniles requiring separation from 
adult clients. 

(43) "State Facility Director" means the chief 
administrative officer or manager of a state facility 
or his designee. 

(44) "Strike" means, but is not limited to, hitting, kicking, 
slapping or beating whether done with a part of 
one's body or w ith an object. 

(45) "Timeout" means the removal of a client from other 
clients to another space within the same activity area 
for the purpose of modifying behavior. 

(46) "Treatment" means the act, method, or manner of 
habilitating or rehabilitating, caring for or managing 
a client's physical or mental problems. 

(47) "Treatment plan" means a written individual plan of 
treatment or habilitation for each client to be 
undertaken by the treatment team and includes any 
documentation of restriction of client's rights. 

(48) "Treatment team" means an interdisciplinary group 
of qualified professionals sufficient in number and 
variety by discipline to adequately assess and 
address the identified needs of the client. 

(49) "Unit" means an integral component of a state 
facility distinctly established for the delivery of one 
or more elements of service to which specific staff 
and space are assigned, and for which responsibility 
has been clearly assigned to a director, supervisor, 
administrator, or manager. 

(50) "Voluntary client" means a person admitted to a 
state facility under the provisions of Article 5, Parts 
2. 3. 4 or 5 of G.S. 122C. 

History Note: Authority G.S. 122C-3; 122C-4; 122C-5I; 

122C-53(f); 131E-67; 143B-147; 

Eff. October 1, 1984; 

Amended Eff. June 1. 1990; April I. 1990; July I. 1989; 

Temporary Amendment Eff. January 1. 1998; 

Amended Eff. April 1, 1999. 

CHAPTER 41 - CHILDREN'S SERVICES 

SUBCHAPTER 41 A - IDENTIFYING INFORMATION: 
MANUALS AND FORMS: COVERAGE 

SECTION .0100 - IDENTIFYING INFORMATION: 
MANUALS AND FORMS: COVERAGE 

.0107 WAIVER OF LICENSING RULES AND 
APPEALS PROCEDURES 

(a) The Department of Health and Human Services may 
allow a waiver to a licensing rule or rules to persons subject to 
licensure pursuant to G.S. 13 ID. Article 1A in accordance 
with the following criteria: 

( 1 ) persons seeking a waiver must submit a written 



request on a form developed by the Department to 
the Department showing that another way of 
meeting a rule maintains the health, safety, and well- 
being of individuals being served at or above \\\m 
level required by the rule; 

(2) no waiver shall be allowed by the Department to any 
rule based on a standard adopted by the Building 
Code Council and subject to the general supervision 
and enforcement of the Commissioner of Insurance; 

(3) no waiver shall be allowed by the Department to any 
rule governing fire safety; 

(4) no waiver shall be allowed by the Department to any 
rule based upon a standard adopted by the Health 
Services Commission: 

(5) the waiver when allowed remains in effect for the 
term of the license and may be renewed if the 
Department determines that the health, safety and 
well-being of individuals being served are not 
threatened; 

(6) upon receipt of the waiver request form, a decision 
to grant or deny the waiver will be made by the 
Department within 10 business days of its receipt. 

(b) The Department of Health and Human Services may 
deny, suspend or revoke a license at any time for failure to 
comply with licensing rules adopted pursuant to G.S. 13 ID. 
Article 1A or for operating in a manner that threatens the 
health, safety or well being of individuals in the facility. 

( 1 ) Denial, suspension, or revocation of licensure by the 
Department of Health and Human Services shall be^ 
effected by mailing to the applicant or licenseB) 
holder, by certified mail, a notice setting forth the 
particular reasons for such action. A suspension or 
revocation shall become effective 60 days after the 
mailing of the notice absent a petition as specified in 
Subparagraph (2) of the Rule. In the event of a 
petition for a contested case hearing, a suspension or 
revocation shall not become effective until a final 
decision is made in the contested case hearing. 

(2) Within 60 days of the decision to deny, suspend or 
revoke a license the applicant or license holder may 
petition for a determination of his legal rights, 
privileges, or duties. All petitions must be in writing 
and contain a statement of the facts prompting the 
request sufficient to allow for appropriate 
processing by the Department of Health and Human 
Services. 

(3) The petition for a hearing shall be filed with the 
Office of Administrative Hearings in accordance 
with G.S. 150B-23 and 26 NCAC 3 .0103. In 
accordance w ith G.S. I A- 1 . Rule 4 (j ) 4. the petition 
shall be served on a registered agent for service of 
process for the Department of Health and Human 
Services. A list of registered agents may be 
obtained from the Office of Legal Affairs. 

(4) Procedures for the processing of an appeal of an^ 
adverse licensing action and for the final decision W 



are specified in G.S. 
IB .0200. 



150B. Article3 and 10 NCAC 



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APPROVED RULES 



History Note: Authority G.S. 131D-10.5; 131D-10.6; 131D- 

10.9; 143B-153; 150B-22; 150B-23; 

Eff. April 1. 1984; 

ARRC Objection March 16. 1988; 

Amended Eff. May 1. 1990; August 1. 1988; 

Temporary Amendment Eff. October 28, 1997; 

Amended EfT April L_ 1999. 



TITLE 15A - DEPARTMENT OF ENVIRONMENT 
AND NATURAL RESOURCES 

CHAPTER 10 - WILDLIFE RESOURCES AND 
WATER SAFETY 

SUBCHAPTER 10F - MOTORBOATS AND 
WATER SAFETY 

SECTION .0300 - LOCAL WATER SAFETY 
REGULATIONS 

.0327 MONTGOMERY COUNTY 

(a) Regulated Areas. This Rule applies to the waters and 
portions of waters described as follows: 

( 1 ) Badin Lake - Lakeshore Drive Cove as delineated by 
appropriate markers. 

(2) Lake Tillery. 

(A) Woodrun Cove as delineated by appropriate 
markers. 

(B) Carolina Forest Cove as delineated by 
appropriate markers. 

(3) Tuckertown Reservoir. 

(b) Speed Limit Near Shore Facilities. No person shall 
operate a vessel at greater than no-wake speed within 50 yards 
of any marked boat launching area. dock. pier, bridge, marina, 
boat storage structure, or boat service area on the waters of the 
regulated areas described in Paragraph (a) of this Rule. 

(c) Speed Limit. No person shall operate a vessel at greater 
than no-wake speed within any regulated area described in 
Paragraph (a) of this Rule. 

(d) Restricted Swimming Areas. No person operating or 
responsible for the operation of a vessel shall permit it to enter 
any marked public swimming area established with the 
approval of the Wildlife Resources Commission on the waters 
of the regulated areas described in Paragraph (a) of this Rule. 

(e) Placement and Maintenance of Markers. The Board of 
Commissioners of Montgomery County is hereby designated a 
suitable agency for placement and maintenance of the markers 
implementing this Rule in accordance with the Uniform 
System. 

History Note: Authority G.S. 75.4-3; 75A-1 5; 

Eff November I. 1977; 

Amended Eff. December 1. 1990: Mar I. 1989; March 25. 

1978; 

Temporary Amendment Eff. June 1. 1998; 

Amended Eff. April 1. 1999. 



SUBCHAPTER 10G - DISTRIBUTION AND 

SALE OF HUNTING: FISHING: AND 

TRAPPING LICENSE 

SECTION .0400 - WILDLIFE SERVICE AGENTS 

.0404 CUSTOMER SUPPORT SYSTEM 

(a) Equipment. Each Wildlife Service Agent shall be 
equipped with a transaction terminal, which is a network 
computer linked to the Commission's central data base by 
telephone lines. Using the transaction terminal, the agent shall 
issue licenses, permits, tags, vessel registrations and decals. 
magazine subscriptions, and other items. The record of sale 
and issuance of each item shall be transmitted by the terminal 
to the Commission overnight via telephone connection. The 
Commission shall communicate information and instructions 
about individual agent accounts and messages of general 
interest to all agents via the transaction terminal. Agents shall 
also be provided two printers: one to print receipts and 
messages and the other to print licenses, permits, tags, decals, 
registrations, and other items. All necessary training, trouble- 
shooting, maintenance, equipment replacements, materials and 
supplies shall be furnished by the Commission. Toll-free 
telephone service to link transaction terminals to the system's 
central data base shall be supplied by the Commission. Net 
proceeds from all transactions shall be transferred to the 
Commission every week via an electronic transfer of funds 
from the bank account designated by an agent in the Wildlife 
Service Agent Agreement to the Commission's account in the 
State Treasury. 

(b) Cancellation. A Wildlife Service Agent may resign at 
any time by sending written notice to the Commission. The 
Commission shall immediately instruct resigning agents in the 
required procedures to follow to return all equipment and 
supplies and to settle their accounts. The Commission may 
cancel any Wildlife Service Agent appointment for failure to 
comply with these Rules or with any administrative directives 
related to performance as a Wildlife Service Agent. 
Deficiencies that may result in cancellation include but are not 
limited to such things as failure to deposit sufficient funds to 
cover the electronic transfer of funds each week, failure to use 
the surge protector provided in conjunction with a properly 
grounded electrical outlet or telephone line, failure to operate 
as a public convenience, failure to provide the proper license 
and correct information about licenses to customers, failure to 
return all required documentation for transactions on schedule, 
and failure to safeguard or care for the equipment. Upon 
resignation or termination of appointment as a Wildlife Service 
Agent, the previous agent must return all consigned equipment 
and supplies to the Commission and settle the agent financial 
account, both with 1 5 days of the date of receiving written 
notice from the Commission. 

History Note: Authority G.S. 113-134; 113-270. 1; 
Eff. April 1. 1997; 
Amended Eff April 1 . 1999. 



13:9 



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November 2, 1998 



783 



APPROVED RULES 



CHAPTER 18 - ENVIRONMENTAL HEALTH 

SUBCHAPTER 18A - SANITATION 

SECTION .3100 - LEAD POISONING PREVENTION 
IN CHILDREN PROGRAM 

.3104 INVESTIGATION TO IDENTIFY LEAD 
POISONING HAZARDS 

(a) The Department shall conduct an investigation when it 
reasonably suspects that a lead poisoning hazard to children 
exists. Reasonable suspicion of a lead poisoning hazard to 
children may be based on the presence of the following 
characteristics: 

( 1 ) a residential housing unit or a child-occupied facility 
built before 1950. a unit or facility built before 1978 
that contains readily accessible deteriorated paint, or 
a unit or facility built before 1978 that is undergoing 
or has undergone renovations or remodeling within 
the last six months, unless the unit is lead-safe 
housing or is in compliance with the maintenance 
standard: 

(2) a child less than six years old residing in. regularh 
visiting, or attending the unit or facility: and 

(3) a referral by a local, state, or federal public health, 
environmental protection, or human services 
official, or building inspector. 

(b) Notwithstanding the existence of a certificate of 
compliance with the maintenance standard, the Department 
shall investigate a residential housing unit occupied or 
regularly visited by a child less than six years old who has a 
persistent elevated blood lead level or confirmed lead 
poisoning. 

(c) The Department ma\ upon request conduct an 
investigation to identify lead poisoning hazards at a proposed 
or substitute residential housing unit of a child less than six 
years old with a persistent elevated blood lead level or 
confirmed lead poisoning who is seeking alternative housing. 

History Note: Authority G.S. I30A-131.5; 130A-131.7; 

130.4-131.8: 1 30.4-1 3 1.9.4: 

Eff October 1, 1990: 

Transferred and Recodified from 15.4 NC.4C 191 .0104 Eff 

August 28, 1991: 

Transferred and Recodified from 15.4 NCAC 21 E .0404 Eff. 

February 18. 1992: 

Amended Eff August 1 . 1996: 

Temporary Amendment Eff. November 21. 199": 

Amended Eff. April 1 . 1999. 

.3106 ABATEMENT AND REMEDIATION 

(a) Notwithstanding the existence of a certificate of 
compliance, the Department may require abatement of lead- 
based paint hazards and remediation of other lead poisoning 
hazards identified at a residential housing unit that is occupied 
or regularly visited b> a child less than six years old who has 
confirmed lead poisoning when: 

(1) a \isual inspection re\eals that the owner or 



managing agent has failed to continue to comply 
with the maintenance standard: or 
(2) the blood lead level of a child with confirmed lead 
poisoning increases on two consecutive blood tesA 
within a six-month period. 

(b) When compliance with the maintenance standard is used 
to meet remediation requirements, maintenance standard 
activities must be conducted in accordance with an approved 
remediation plan in accordance with G.S. 130A-131.9C. The 
remediation plan must address all lead poisoning hazards 
identified on interior and exterior surfaces including floors, 
walls, ceilings, windows, porches, decks, garages, railings, 
steps, and bare soil. 

(c) Abandonment of a residential housing unit or a child- 
occupied facility is an acceptable method of remediation. A 
remediation plan of abandonment shall contain a statement that 
the owner or managing agent agrees to submit a modified 
remediation plan to the Department at least 14 days before the 
abandoned unit or facility is reoccupied if the property will be 
used as a residential housing unit or a child-occupied facility. 
The lead-based paint hazards must be abated and other lead 
poisoning hazards must be remediated in accordance with an 
approved remediation plan. Nothing in this Rule shall be 
construed as authorizing an owner or managing agent to evict 
an occupant of a residential housing unit in violation of G.S. 
42. 

(d) Demolition of a residential housing unit or a child- 
occupied facility is an acceptable method of remediation. The 
remediation plan shall indicate containment measures for lead-^ 
contaminated dust and soil, and storage and disposal methods^ 
for lead-contaminated construction debris. The owner or 
managing agent must notify the Department and the occupants 
of any adjacent unit or facility of the dates of demolition at 
least three days prior to commencement of demolition. 

History Note: Authority G.S 130.4-131.5: 130.4-1 31 J: 

130.4-131.8: 130.4-131.9.4: 130.4-131. 9B: 130.4-131.9C: 

130.4-131. 9D: 1 30.4-1 31.9E: 

Eff. January 1 . 1995: 

Amended Eff. September 1. 1996: 

Temporary Amendment Eff. November 21. 199~: 

Amended Eff. April L 1999. 

.3107 MAINTENANCE STANDARD 

(a) Property owners and managing agents shall use safe 
work practices to repair and repaint deteriorated paint on 
interior surfaces of a residential housing unit and to correct the 
cause of deterioration including structural conditions causing 
water infiltration, interior moisture, and poor paint adhesion. 
For pre- 1950 single family and duplex residential housing 
units, property owners and managing agents shall repair and 
repaint both interior and exterior surfaces including all walls. 
ceilings, windows, porches, decks, garages, railings, and steps, 
and shall correct the causes of deterioration. In addition, for 
pre- 1950 single family and duplex residential housing units. A 
property owners and managing agents shall establish and™ 
maintain a vegetative cover in areas of bare soil within three 
feet of the residential housing unit. 



784 



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13:9 



APPROVED RULES 



(b) Property owners and managing agents shall conduct 
specialized cleaning on interior horizontal surfaces to remove 
dust that may contain lead. 

(c) Property owners and managing agents shall correct 
conditions in which painted surfaces are rubbing, binding, or 
being damaged to protect the integrity of the paint and to 
prevent the generation of lead dust. 

(d) Subject to the occupant's approval, property owners and 
managing agents shall steam shampoo carpets or use other 
specialized cleaning methods to remove dust that may contain 
lead. 

(e) Property owners and managing agents shall provide 
smooth and cleanable interior horizontal surfaces by recoating 
deteriorated hardwood floors with a durable coating, replacing 
or recovering worn-out linoleum floors, making interior 
window sills smooth and cleanable, capping window troughs 
with vinyl or aluminum coil stock, and providing drainage 
from storm window frames. 

(0 Property owners and managing agents shall provide 
occupants with the Environmental Protection Agency- 
developed pamphlet "Protect Your Family from Lead in Your 
Home", any summaries of reports prepared by a certified lead 
inspector or a certified lead risk assessor on lead-based paint 
hazards, an educational pamphlet developed by the 
Department describing the maintenance standard and the 
effects of compliance on the owner, and information related to 
previous certificates of compliance issued. 

History Note: Authority' G.S. 1 30.4-1 3 1.5; 130A-131.7; 
130A-13I.9D; 130.4-1 3 1. 9E; 130.4-131. 9F; 130.4-1 31.9G; 
Temporary Adoption Eff. November 21, 1997; 
Eff. April ' 1. 1999. 

.3110 MONITORING 

(a) The Department shall monitor the validity of 
information submitted by owners who seek certificates of 
compliance with the maintenance standard. 

(b) Monitoring activities shall include a review of 
application materials submitted and may include on-site 
compliance monitoring to verify the accuracy and adequacy of 
the information provided. 

(c) The Department shall design and implement a plan to 
conduct visual inspections of up to 50% of the residential 
housing units for which applications are submitted for 
certificates of compliance with the maintenance standard. 

(d) For residential housing units subject to abatement and 
remediation requirements in which children less than six years 
of age have resided in or regularly visited within the past year, 
the Department shall conduct visual inspections and residual 
lead dust monitoring to verify continued compliance with the 
maintenance standard annualk and at any other time the 
Department deems necessary to carry out the provisions of 
G.S. 130A-131.7 or these Rules. 

HistoiyNote: Authority G.S 130.4-131.5; 130.4-131."; 

130.4-131.8; 130.4-1 3 1.9.4-G; 

Temporary Adoption Eff. November 21. 1997; 

Eff. April ' 1, 1999. 



TITLE 21 - OCCUPATIONAL LICENSING 
BOARDS 

CHAPTER 14 - BOARD OF COSMETIC 
ART EXAMINERS 

SUBCHAPTER 14A - DEPARTMENTAL RULES 

SECTION .0100 - ORGANIZATIONAL RULES 

.0104 ADDRESS 

The address for the board is 1201-1 10 Front Street. Raleigh. 
North Carolina 27609. 

History Note: A uthority G. S. 88-23 ; 

Eff. Februaiy 1 , 1976; 

Amended Eff. August f_ 1 998; December 6. 1991; January 1. 

1989; April!. 1988. 



TITLE 26 - OFFICE OF ADMINISTRATIVE 
HEARINGS 

CHAPTER 4 - CIVIL RIGHTS DIVISION 

SECTION .0200 - POLITICAL DISCRIMINATION 
COMPLAINTS 

.0202 CONTENT AND FILING PROCEDURES 

(a) Forms for filing political discrimination complaints may 
be obtained from the Civil Rights Division, PO Drawer 27447, 
Raleigh, NC 27611-7447 or 910-733-0431. Any person 
wishing to file a complaint of alleged political discrimination 
shall address the complaint to: 

Director of Civil Rights Division 

PO Drawer 27447 

Raleigh, NC 2761 1-7447 

(b) The complainant may file a political discrimination 
complaint and related documents by facsimile (fax) 
transmission during regular office hours. The faxed 
complaints and documents shall be deemed a "filing" within 
the meaning of 26 NCAC 4 .0201(3) provided the original 
complaint or documents are received by the Civil Rights 
Division within five business days following the faxed 
transmission. 

(c) The complaint shall include the following information: 

( 1 ) Full name, address and telephone number (work and 
home) of person making the complaint; 

(2) Full name, address and telephone number of the 
agency against whom the complaint is made (the 
respondent); 

(3) The basis of the complaint (hiring or promotion); 

(4) The date the alleged discrimination occurred; 

(5) The name(s) of the individual(s) hired or promoted; 

(6) A statement disclosing the particulars of the 



13:9 



NORTH CAROLINA REGISTER 



November 2, 1998 



785 



APPROVED RULES 



employment decision; 

(7) The signature of the person making the complaint; 
and 

(8) The date the complainant signed the complaint. 

History Note: Authority G.S. 7A-751; 126-14.4; 
Temporary Adoption Eff. January 1. 1998; 
Eff. August 1, 199S; 
Amended Eff. August 1, 199S. 



786 SORTH CAROLINA REGISTER November 2. 1998 13:9 



RULES REVIEW COMMISSION 



I his Section contains the agenda for the next meeting of the Rules Review Commission on Thursday, November 19, 1 998, 
10:00 a.m. . at 1307 Glenwood Ave., Assembly Room, Raleigh. NC Anyone wishing to submit written comment on any 
ride before the Commission should submit those comments to the RRC staff, the agency, and the individual Commissioners 
by Monday; November 16, 1998, at 5:00 p. in. Specific instructions and addresses may be obtained from the Rules Review 
Commission at 919-733-2721. Anyone wishing to address the Commission should notify the RRC staff and the agency at 
least 24 hours prior to the meeting. 



RULES REVIEW COMMISSION MEMBERS 



Appointed by Senate 

Teresa L. Smallwood. Vice Chairman 

Jim Funderburke 

Vernice B. Howard 

Philip O. Redwine 

David Twiddy 



Appointed by House 

Paul Powell. Chairman 

Anita White. 2 nd Vice Chairman 

Mark Garside 

Steve Rader 

George Robinson 



RULES REVIEW COMMISSION MEETING DATES 



November 
December 



9. 1998 
7. 1998 



January 21. 1999 



RULES REVIEW COMMISSION 

September 17, 1998 
MINUTES 

The Rules Review Commission met on September 17. 1998. in the Assembly Room of the Methodist Building. 1307 Glenwood 
Avenue, Raleigh. North Carolina. Commissioners in attendance were Chairman Paul Powell. Teresa L. Smallwood. Stephen P. 
Rader. George S. Robinson, David R. Twiddy, Vernice B. Howard. Jim R. Funderburk, Anita A. White, and Mark P. Garside. 

Staff members present were: Joseph J. DeLuca. Staff Director; Bobby Bryan. Rules Review Specialist: and Sandy Webster. 

The following people attended: 



Valerie Chaffin 
Bud McCarty 
Jill Burton 
Linda Culpepper 
Bill Breeze 
Emily Lee 
Dedra Alston 
Dee Williams 
Jackie Sheppard 
Mark Sisak 
Jessica Gill 
Jennie Dorsett 



Hunton & Williams 

DENR/Hazardous Waste 

DENR Hazardous Waste 

DENR Hazardous Waste 

N C Medical Board- Athletic Trainers 

Transportation 

DENR 

Cosmetic Art Examiners 

DHHS/DFS 

State Budget 

DENR'DCM 

Athletic Trainers 



APPROVAL OF MINUTES 

The meeting was called to order at 10:02 a.m. with Chairman Powell presiding. He asked for any discussion, comments, or 
corrections concerning the minutes of the August 20. 1998 meeting. There being none, the minutes were approved. 

LOG OF FILINGS 



13:9 



NORTH CAROLINA REGISTER 



November 2, 1998 



787 



RULES REVIEW COMMISSION 



Chairman Powell presided over the review of the log and all rules were unanimously approved with the following exceptions: 

12 NCAC 11 .0501: JUSTICE NC Alarm Systems Licensing Board - The Commission objected to this rule due to lack of 
necessity. There are no requirements or authorizations in .0501 and it is thus unnecessary. A 

12 NCAC 11 .0502: JUSTICE NC Alarm Systems Licensing Board - The Commission objected to this rule due to lack of 
necessity. The term "accredited sponsor" is not used in these rules so the definition in .0502 is unnecessary. 

12 NCAC 11 .0504: JUSTICE NC Alarm Systems Licensing Board - The Commission objected to this rule due to lack of 
statutory authority and ambiguity. There is no authority cited for the board to set occupational qualifications for instructors, thus 
there is no authority to inquire into the qualifications in .0504(a)(4) or determine their competency in (b)(2). It is also not clear 
what would constitute competency. In .0504(c). it is not clear what standards the full board will use in determining if a course will 
be sanctioned. 

12 NCAC 1 1 .0505: JUSTICE NC Alarm Systems Licensing Board - The Commission objected to this rule due to ambiguity. In 
.0505. it is not clear what standards the board will use in determining if out of state courses will be sanctioned. 

14A NCAC 7 .0313: DEPARTMENT OF CRIME CONTROL AND PUBLIC SAFETY - The Commission objected to this rule 
due to ambiguity. It is not clear what standards the Governor's Crime Commission is to use in determining matching fund ratios. 

15A NCAC 7H .1705: DENR Coastal Resources Commission - The Commission objected to this rule due to ambiguity. In 
(c)( 1 )(C). it is not clear what standards will be used in allowing dredging for fill material to protect highways or other structures of 
public interest. It is also not clear what is meant b\ "structures of public interest." This objection applies to existing language in 
the rule. 

15A NCAC 13B .1624: DENR Commission for Health Services - The Commission objected to this rule due to ambiguity. In 
(b)( 1 )(A). it is not clear what will make a model "acceptable to the Division." In (b)( 1 )(A)(iv ). it is not clear what will make a 
"two-phase modeling approach" be acceptable to the Division. In (b)(4). it is not clear what standards the Division will use in 
approving materials for separation materials. In (b)(7). it is not clear what constitutes "adequateh specified." In (b)(7)(A). it is * 
not clear what constitutes "adequateh tree of organic material." It is also not clear when a "select fill" will be approved b\ the^ 1 
Division. In (b)(7)(B)(i). it is not clear what standards the Division will use in approving grading plans and specifications. In 
(b)(7)(C) (i). it is not clear what standards the Division will use in approving engineering plans. In (b)(7)(C)(iii). it is not clear 
what standards the Division will use in approving plans. In (b)(8)(B)(i). it is not clear what standards the Division will use in 
approving an alternative "in situ test." In (b)(8)(B)(v ). it is not clear what constitutes adequate protection from environmental 
degradation. In (b)(8)(C)(ii). it is not clear what standards the Division will use in approving tests. In (b)(9)(B)(ii). it is not clear 
what standards the Division will use in approving placing materials on top of the GCL. In (iii). it is not clear what standards the 
Division will use in approving removing, repairing, and replacing material. In (b)(9)(C)(i). it is not clear what standards the 
Division will use in approving geosynthetic clav installation. In (ii). it is not clear what standards will be used in approving the 
placement of materials. In ( v). it is not clear what standards will be used in approving retesting. In (v )(III). it is not clear what 
standards the Division will use in approving engineering plans. In (b)(10)(C). it is not clear what standards will be used in 
approving retesting. In (b)(l I)(B)(i). it is not clear what standards will be used in approving the installation of leachate collection 
piping. In (b)(ll)(C). it is not clear what standards will be used in approving retesting. In (b)(12)(B)(i). it is not clear what 
standards the Division will use in approving placement of drainage layer material. In (b)(12)(C). it is not clear what standards will 
be used in approving retesting. In (b)(13)(B). it is not clear what standards will be used in approving the installation of filter 
layers. In (b)( 13)(C). it is not clear what standards will be used in approving retesting. This objection applies to existing language 
in the rule. 

19A NCAC 2D .0816: TRANSPORTATION Division of Highways - The Commission objected to this rule due to lack of 
statutory authority. There is no authority for the Department to disqualify a contractor from bidding because of the recruitment of 
department employees for employment as the rule does in (a)(6). 

DIRECTOR'S REPORT 

Commissioner Funderburk made a motion that the election of officers be postponed until November and reviewed again at that 
time if new Commissioners have not been appointed. Commissioner Rader seconded the motion, although he did note that * 
elections could be held if the new commissioners were in place. The vote was unanimous. The meeting next month is a change ▼ 
from the third Thursday to the fourth Thursdav. A proposed budget is being prepared for 1 999-2000. Our lease should remain the 
same for at least next vear. 



788 NORTH CAROLINA REGISTER November 2, 1998 13:9 



RULES REVIEW COMMISSION 



COMMISSION PROCEDURES AND OTHER MATTERS 

The next meeting will be on October 22, 1998. 

The meeting adjourned at 10:38 a.m. 

Respectfully submitted, 
Sandy Webster 



ft 



13:9 NORTH CAROLINA REGISTER November 2, 1998 789 



CONTESTED CASE DECISIONS 



1 his Section contains the fall text of some of the more significant Administrative Law Judge decisions along with an 
index to all recent contested cases decisions which are filed under North Carolina's Administrative Procedure Act. 
Copies of the decisions listed in the index and not published are available upon request for a minimal charge by 
contacting the Office of Administrative Hearings, (919) ' '3 3-2698. Also, the Contested Case Decisions are available on 
the Internet at the following address: http://www.state.nc.us/OAH hearings/ decision/caseindex.htm. 



% 



OFFICE OF ADMINISTRATIVE HEARINGS 

Chief Administrative Law Judge 

JULIAN MANN. Ill 

Senior Administrative Law Judge 

FREDG. MORRISON JR. 

ADMINISTRATIl E LAW Jl DGES 



Brenda B. Becton 
Sammie Chess Jr. 
Beecher R. Gray 
Melissa Owens 



Meg Scott Phipps 
Robert Roosevelt Reilly 
Dolores O. Smith 



Jr. 



AGENCY 

ALCOHOLIC BEVERAGE CONTROL COMMISSION 

Alcoholic Beverage Control Commission \ Kenneth Jerome 
Alcoholic Beverage Control Commission \ Jesse Jacob Joyner. Jr 
Alcoholic Beverage Control Commission \ Trade Oil Company Inc 
Alcoholic Beverage Control Comm \ Partnership T/A C & J's Shipwreck 
Alcoholic Beverage Control Commission v Axis Entertainment 
Sokha Huor Ramadneh v Alcoholic Beverage Control Commission 
Alcoholic Beverage Control Commission v Delores Williams Alnaqib 
Alcoholic Beverage Control Commission v Axis Entertainment 
Alcoholic Beverage Control Commission \ James Aubrey Stephenson 
Alcoholic Beverage Control Commission v Bndgette Dee Williams 
Alcoholic Beverage Control Commission \ Robert Lee. Inc 
Alcoholic Beverage Control Comm v Partnership. T/A Variety Pic Up #21 
Tarus Jackson \ Alcoholic Beverage Control Commission 

BOARD OF CONTRAC TORS 

Heritage Pointe Builders. Inc & Patrick Hannon \ Bd of Contractors 

CRIME CONTROL AND PLBLIC SAFETY 

Loretta Battle \ Crime Victims Compensation Commission 
Cynthia Austin v. Crime Victims Compensation Commission 
Marcella Skaggs v Crime Victims Compensation Commission 
Talmadge E McHenrv v Crime Victims Compensation Commission 
Linda Caldwell Wiggins v Crime Victims Compensation Commission 
Kenneth T Lytle \ Crime Victims Compensation Commission 
Shirley Henrvhand v Crime Victims Compensation Commission 
Brenda Jean Thomas v Crime Victims Compensation Commission 
Tareyton L Johnson v. Crime Victims Compensation Commission 
Mia Thompson-Clark \ Crime Victims Compensation Commission 
Faye E Powell v Crime Victims Compensation Commission 
Shirley P Chen \ Crime Victims Compensation Commission 

ENVIRONMENT AND NATURAL RESOl RCES 

Ladane Williamson and Odell Decarol Williamson \ DENR 
Teresa Hellin % Department of Environment and Natural Resources 
Ronald Prater v Department of Environment and Natural Resources 



CASE 




DATE OF 


PI BUSHED DECISION 


M'MBER 


ALJ 


DECISION 


REGISTER CITATION 


97 ABC 1 205 


Phipps 


07/23/98 




97 ABC 1438 


Phipps 


06/19/98 




98 ABC 0033 


Reilly 


08/21/98 




98 ABC 0296 


Morrison 


08/19/98 




98 ABC 0357* 3 


ReilK 


07/02/98 




98 ABC 0382 


Smith 


06/30/98 


1 3 03 NCR 350 


98 ABC 0392 


Chess 


07/30/98 




98 ABC 0401*-' 


Reillv 


07/02/98 




98 ABC 0494 


Chess 


09/01/98 




98 ABC 0501 


Reilly 


08/11/98 




98 ABC 05 18 


Grav 


08/1 1 /98 




98 ABC 0714 


Morrison 


10/09/98 




98 ABC 0768 


Smith 


07/13/98 




97 LBC 0243 


Phipps 


08/1 7/98 




97 CPS 0654 


Grav 


08/10/98 




97CPS 1499 


Reillv 


08/12/98 


13 05 NCR 533 


98 CPS 0065 


Owens 


06/05/98 




98 CPS 01 16 


Grav 


06/24/98 




98 CPS 0153 


Chess 


08/27/98 




98 CPS 0176 


Reillv 


07/06/98 




98 CPS 0263 


Morrison 


08/11/98 




98 CPS 0314 


Morrison 


08/11/98 




98 CPS 0327 


Reillv 


09/02/98 




98 CPS 0349 


Chess 


05/14/98 




98 CPS 0808 


Owens 


08/28/98 




98 CPS 1015 


Phipps 


09/17/98 




96EHR 192d 


Grav 


09/01/98 


13 07 NCR 609 


97 EHR 0409 


Morrison 


07/29/98 




97EHR0451 


Reillv 


07/02/98 





790 



NORTH CAROLINA REGISTER 



November 2, 1998 



13:9 



CONTESTED CASE DECISIONS 



AGENCY 

James F Smith v. Department of Environment and Natural Resources 
Hickory Alliance v. Department of Environment and Natural Resources 
and 

Godfrey Lumber Company. Inc 
John M Silvia v Department of Environment and Natural Resources 
Godfrey Lumber Company. Inc v. Dept /Environment & Natural Resources 
and 

Hickory Alliance 
Gregory B Jackson. Brenda R Jackson v. Greene Ct\ Hlth Dept . EN R 
Robert G Goff. Sr v Department of Environment and Natural Resources 
Scotland Water. Cedar Circle V Environment and Natural Resources 
Eric Glenn Harrison v Environment and Natural Resources 
Robert G Goff. Sr v. Department of Environment and Natural Resources 

Division of Coastal Management 

Preston Warren v. Division of Coastal Management. Wilmington. NC 

Division of Environmental Health 

Gerald P. Sigal v DENR. Division of Environmental Health 

Division of Environmental Management 

Save Our Rivers. Inc.. et al v. Town of Highlands. EHNR. Env Mgmt . 

William W Cobey. Jr., Secretary 
US Dept of the Interior Nat'l. Park Svce v Environmental Mgmt Coram 

Division of Marine Fisheries 

Lady LaShanda Melvin Bryant v EHNR. Division of Marine Fisheries 
Gerald Moore, et al v. DENR. Division of Marine Fisheries 

Division of Solid Haste Management 

Steve Aldndge. et al. V DENR. Division of Solid Waste Management 

Division of '.later Quality 

Raymond L Martin v DENR. Division of Water Quality 

Worsley Oil Companies. Inc \ DENR DWQ. Groundwater Section 

Silver Bullet. Inc V DENR. Division of Water Quality 

HEALTH AND HI MAN SERVICES 

Stanley C Ochulo v Off/Administrame Hearings. Mr R Marcus Lodge 

Oliver C Johnson. Hazel T Johnson v Health and Human Services 

Louise Streater v Health and Human Services 

Richard E LawTence. Rebecca A Lawrence v Health and Human Sen-ices 

John David Brinson \ Department of Human Resources 

Stephanie Wade \ Department of Health and Human Sen ices 

Carolyn L Freeman v. Department of Human Resources 

Otis L. Mack. Jr v. Office of Administrative Hearings 

Christopher Germane Lee Germano v. Department of Health 

Division of Child Development 

Dulatown Presbyterian Children's Ctr. v DHHS. Child Development 

Cassandra Myers \ Division of Child Development 

Dulatown Presbyterian Children Ctr v DHR. Child Development 

Dora's Child Development Center \ Mecklenburg Ct> DSS. and DHR 

Division of Facility Services 

Pearlie W Lawson v. DHHS. Facility Svcs . Health Care Personnel Reg 
Annie K Morgan v Health & Human Services., Facility Services 
Mooresville Hospital Mgmt Associates. Inc d/b/a Lake Norman Regional 

Medical Center v DHR. Facility Sen-ices. Certificate of Need Section 
and 

Autumn Corporation and McKinlev V Jurney 
Warren Moore & Catherine Moore v. DHR. Div of Facility Sen ices 
Constellation Health Senices. Inc and Constellation Senior Senices. 

Inc v DHR. Facility Senices. Group Care Licensure Section 
and 

Diversified Health Group. LLC and The Innovative Health Group. Inc 
Dialysis Care of NC. LLC. d/b/a Dialysis Care of Rowan County 

V DHR. Division of Facility Senices. Certificate of Need Section 

v. Biomedical Applications of NC. Inc d/b/a BMA ofKannapolis d/b/a 

Metrohna Kidney Center ofKannapolis (Lessee) and Metrohna Nephrology 

Associates. PA (Lessor) 
Robin Annette Reavis v. Health and Human Svcs.. Div of Facility Svcs 
Jennifer Blofeld v DHHS. Facility S\cs . Health Care Personnel Registry 
Sunlite Retirement Home. Winnie Jane Johnson v DHR. Facility Sen ices 



CASE 




DATE OF 


PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION 


REGISTER CITATION 


97 EHR 1365 


Chess 


07/17/98 




97 EHR 1607 


Reilly 


07/1 7/98 




97 EHR 1646 


Chess 


06/03/98 




97 EHR 1676 


Reilly 


07/17/98 




98 EHR 0042 


Reilly 


07/02/98 




98 EHR 0072* ; 


Gray 


06/25/98 




98 EHR 0236 


Smith 


06/09/98 




98 EHR 0373 


Reilly 


08/28/98 




98 EHR 0448* : 


Gray 


06/25/98 




98 EHR 01 77 


Phipps 


10/05/98 




98 EHR 0051 


Smith 


10/02/98 




91 EHR 0377 


Gray 


07/30/98 




98 EHR 0410 


Smith 


08/20/98 


13:06 NCR 578 


97 EHR 1459 


Gray 


07/20/98 




98 EHR 0322 


Owens 


10/08/98 


13:09 NCR 796 


98 EHR 0665 


Chess 


09/09/98 


13:07NCR 617 


98 EHR 0590 


Gray 


09/21/98 




98 EHR 0735 


Chess 


08/24/98 




98 EHR 0931 


Chess 


08/20/98 




98 DHR 0021 


Reilly 


06/24/98 




98 DHR 0090 


Gray 


07/08/98 




98 DHR 01 96 


Gray 


06/03/98 




98 DHR 0209 


Phipps 


07/15/98 




98 DHR 0369 


Owens 


08/17/98 




98 DHR 0666 


Reilly 


08/1 9/98 




98 DHR 0721 


Gray 


08/05/98 




98 DHR 0729 


Phipps 


09/09/98 




98 DHR 0780 


Owens 


07/28/98 




98 DHR 0654 


Gray 


08/06/98 




98 DHR 0948 


Owens 


09/03/98 




98 DHR 1112 


Morrison 


10/16/98 




98 DHR 1184 


Phipps 


09/25/98 




97 DHR 1034 


Becton 


07/30/98 




97 DHR 1046*' 


Phipps 


07/23/98 




97 DHR 1209 


Reilly 


06/23/98 





97 DHR 1279 
97 DHR 1529 



97 DHR 158 



Mann 
Gra\ 



Phipps 



09/08/98 
06/24/98 



08/31/98 



97 DHR 1672 


ReilK 


08/12/98 


98 DHR 0096 


Grav 


08/21/98 


98 DHR 0124 


Phipps 


06/11/98 



13:9 



NORTH CAROLINA REGISTER 



November 2, 1998 



791 



CONTESTED CASE DECISIONS 



AGENCY 

Helen Shokoti v Health and Human Services, Div of Facility Services 

Ann Davis Rest Home v Group Care Licensure Section 

Diane Lingard v. DHR. Facility Svcs. Health Care Personnel Reg 

K.imberly Annette Smith Hull v DHHS. Division of Facility Services 

Deborah Ann Holt \ DHHS. Division of Facility Services 

Tern Michelle Tyler \ Health & Human Svcs. Div of Facility Services 

Dons Jones Holmes \ DHHS. Facilm Svcs. Health Care Personnel Reg 

Annie K Morgan v Health & Human Services . Facility Services 

Johnnie E Williams v DHHS. Division of Facility Services 

Tracey Deirde Galloway \ DHHS. Facility Svcs . Health Care Per Reg 

Rose Marie Hadley v DHHS. Division of Facility Services 

Division of Medical Assistance 

Charlotte-Mecklenburg Hospital Authority, d/b/a Carolinas Medical Ctr. 
and Ham Mahannah. M D \ DHHS. Division of Medical Assistance 



CASE 




DATE OF 


NUMBER 


ALJ 


DECISION 


98 DHR 01 73 


Chess 


08/26/98 


98 DHR 0197 


Phipps 


06/23/98 


98 DHR 0214 


Becton 


06/22/98 


98 DHR 0239 


Phipps 


06/23/98 


98 DHR 0348 


Phipps 


06/22/98 


98 DHR 0458 


Grav 


08/21/98 


98 DHR 0463 


Gra\ 


08/21/98 


98 DHR 0496*' 


Phipps 


07/23/98 


98 DHR 0639 


Reillv 


07/02/98 


98 DHR 0824 


Grav 


09/24/98 


98 DHR 0970 


Smith 


10/08/98 


97 DHR 0621 


Smith 


07/08/98 



PFBLISHED DECISION 
REGISTER CITATION 



• 



Division of Social Services 

William & Crystal Steakley \ DHHS. Division of Social Services 

Raji Abdus-Salaam v Department of Human Resources. DSS-DCA 

Child Support Enforcement Section 
Robert H Black v Guilford County Child Support Enforcement 
Dorman E Drake \ Department of Human Resources 
Robert Alan Davis v Department of Human Resources 
Michael W White v Department of Human Resources 
Troy R Emmons. Jr v Department of Human Resources 
Marvin A. Pike v. Department of Human Resources 
Mary Putnam Avery \ DSS. Durham County Child Support Enforcement 
Gilbert G Gray v Department of Human Resources 
Dale W. Hutchinson v Department of Human Resources 
Joe A Lynch v. Department of Human Resources 
Mark Owens Fnnk v. Department of Human Resources 
Jeffery Lee Graves \ Department of Human Resources 
Donald L Can. Jr v. Department of Human Resources 
Man in Diggs v Department of Human Resources 
Michael Patrick Dyme v Department of Health & Human Sen ices 
Dennis Lee McNeill v. Department of Human Resources 
By Ton O Ashbv II \ Department of Human Resources 
Hubert L Morrison v Department of Human Resources 
Robert Alan Davis \ Department of Human Resources 
DarnlC Thompson \ Department of Health & Human Senices 
Darryl C Thompson \ Department of Health & Human Senices 
Michael Anthony Hill v. Department of Human Resources 
Michael A Wilder v Department of Human Resources 
Billy Anthony Jr v Department of Human Resources 
Alton D Bagley v Department of Human Resources 
Bemel B Berry Jr v Department of Human Resources 
Darryl Simpkins v Department of Health & Human Senices 
Anthony Montgomery v Department of Human Resources 
Joseph Gerard McPhillips \ Department of Human Resources 
Terry Letterman v Department of Human Resources 
William E Mines v Department of Human Resources 
Annette Chipman \ Department of Human Resources 
Paul J Mobley.Jr v Department of Human Resources 
Robert A Shererv Department of Human Resources 
Gregory Andre Brown v Department of Health & Human Senices 
Rodger Hazen II v Department of Human Resources 
Wade A Burgess v. Department of Human Resources 
Robert L Robinson v Department of Human Resources 
Jamie A Hum v Department of Health & Human Senices 
Renardo Jenkins v Department of Human Resources 
Anthony Love v Department of Human Resources 
Steven Kent Gold v Department of Human Resources 
Leroy J Poole v Department of Human Resources 
Hoval A McLean v Department of Health & Human Senices 
Michael Bernard Hill \ Department of Health & Human Senices 
Charlie Ratliff Jr v Department of Health & Human Senices 
Bobb> D Cook \ Department of Health & Human Senices 
John B Hall v. Department of Human Resources 
Derrick A Bnnton v Department of Human Resources 
Tabatha D Pate \ Department of Human Resources 
Amanda F Blount v. Department of Human Resources 
Gregory Carry (IV =1564206) v Department of Human Resources 
Gregory Carty (IV ^1564166) v Department of Human Resources 



98 DHR 0076 


Gray 


07/20/98 


98 DHR 0771 


Owens 


07/30/98 


96 CRA 1 548 


Mann 


10/09/98 


96 CRA 1717 


Smith 


08/25/98 


96 CRA 1781*' 


Phipps 


08/20/98 


96 CRA 1784 


Gray 


09/25/98 


96 CRA 1798 


Reil'ly 


08/25/98 


96 CRA 1814 


Chess 


09/24/98 


96 CRA 1 849 


Morrison 


09/01/98 


96 CRA 1858 


Morrison 


10/08/98 


96 CRA 1981 


Mann 


i.8 >'>s 


97 CRA 0045 


Phipps 


10/09/98 


97 CRA 1 524 


Mann 


10/09/98 


98 CRA 0137 


Becton 


06/23/98 


98 CRA 0545 


Reillv 


iihi.S >-s 


98 CRA 0588 


Reilly 


06/24'98 


98 CRA 0787 


Gray 


09/17/98 


96CSE 1305 


Gray 


06/22/98 


96CSE 1435 


Mann 


07/15/98 


96CSE 1649 


Reilly 


08/12/98 


96CSE 1780*" 


Phipps 


08/20/98 


96CSE 1854* ;; 


Chess 


09/01/98 


96CSE1902* :; 


Chess 


09/01/98 


96 CSE 2028 


Mann 


08/26/98 


97CSE 1301 


Chess 


07/17/98 


97 CSE 1 393 


Reilly 


06/24/98 


97 CSE 1424 


Chess 


06/02/98 


97 CSE 1435 


Smith 


06/12/98 


97 CSE 1436 


Chess 


08/11/98 


97 CSE 1442 


Phipps 


06/17/98 


97 CSE 1467 


Mann 


10/09/98 


97 CSE 1492 


Smith 


06/22/98 


97 CSE 1 527 


Mann 


09/08/98 


97 CSE 1 545 


Phipps 


07/23/98 


97 CSE 1568 


Phipps 


06/17/98 


97 CSE 1605 


Mann 


07/15/98 


97 CSE 1656 


Grav 


08/27/98 


97 CSE 1666 


Chess 


07/17/98 


98 CSE 0071 


Morrison 


06/12/98 


98 CSE 0130 


Reilly 


07/15/98 


98 CSE 0307 


Morrison 


07/06/98 


98 CSE 0310 


Smith 


06/23/98 


98 CSE 0312 


Phipps 


06/23/98 


98 CSE 0333 


Morrison 


07/01/98 


98 CSE 0375 


Reilly 


07/02/98 


98 CSE 0420 


Smith 


(17 29/98 


98 CSE 0421 


Becton 


07/15/98 


98 CSE 0449 


Mann 


07/15/98 


98 CSE 0483 


Reilly 


10/06/98 


98 CSE 0506 


Chess 


07/20/98 


98 CSE 0555 


Smith 


08/07/98 


98 CSE 0556 


Becton 


06/23/98 


98 CSE 0560 


Chess 


07/29/98 


98 CSE 0561*" 


Phipps 


09/23/98 


98 CSE 0562* IJ 


Phipps 


09/23/98 



f 



792 



NORTH CAROLINA REGISTER 



November 2, 1998 



13:9 



CONTESTED CASE DECISIONS 



AGENCY 

John L. Bullard v. Department of Human Resources 

Frank A Cotton v. Department of Human Resources 

Charlie Gray Hunt Jr v. Department of Human Resources 

Willie R Cruse V, Department of Health & Human Services 

Thomas H Lotze, Jr v. Department of Health & Human Services 

Robert L Williams v. Department of Human Resources 

Patrick Bass v Department of Health & Human Services 

Tawanna Wheeler v Department of Health & Human Services 

Timothy Kinney v. Department of Health & Human Services 

Teresa L Galloway v. Department of Health & Human Services 

Michael A Looper v Department of Health & Human Services 

Kenneth E Strickland \ Department of Health & Human Services 

Hoyt H Bunt Jr v. Department of Health & Human Sen ices 

Vernon Reginald Pinkney v Department of Health & Human Services 

Elijah G Deans v. Department of Health & Human Services 

James Howard Alexander v Department of Health & Human Services 

Lee J. Coggins v. Department of Human Resources 

Mark J Houlbrook v Department of Health & Human Services 

Henrv A Harriel. Jr v. Department of Health & Human Services 

Denilra Jeffries v Department of Health & Human Services 

Bryan L Barksdale v Department of Health & Human Services 

Karen Mitchell v Department of Human Resources 

Vickie E Lane V Michael L Adams. Department of Human Resources 

Rachel D Farmer v. Department of Health & Human Services 

Janice Scott Padgett (Fisher) v Department of Human Resources 

Barbara Fanta-Blandine v. Department of Human Resources 

Sharon Brim v Department of Health & Human Services 

Tenta M Sharpe v. Department of Human Resources 

Ruth McFadden v Department of Human Resources 

Division of H omen 's and Children 's Health 

Khamis A Sirhan v DFIHS. Women's/Children's Health. Nutrition Svcs 
Joseph A Nawas v. DHHS Women's/Children's Health. Nutrition Svcs 

JISTICE 

James Todd Tippet v NC Company Police Program 

Alarm Systems Licensing Board 

Claude David Huggins v Alarm Systems Licensing Board 

Auctioneer Licensing Board 

Wiley R Tyndall v. Auctioneer Licensing Board 

Education and Training Standards Division 

Thomas Dwayne Brown v Sheriffs' Education & Training Standards Comm 
Kenneth Joseph Jackson v. Sheriffs' Education & Training Standards Comm 
Ouis Fitzgerald Darden v Sheriffs' Education & Training Standards Comm 
Hon le Kenneth Wise. Jr v Sheriffs' Education & Training Standards Comm 
Hearl Oxendine v Criminal Justice Education & Training Stds Comm 
James Farrell Roberts \ Criminal Justice Education & Training Stds Comm 
Phillip Keith McPherson v Sheriffs' Education & Training Standards Comm 
Darvl LaMar Brvant v Sheriffs' Education & Training Standards Comm 
Harold F Esters v. Sheriffs' Education & Training Standards Comm. 
William Scott Key v. Sheriffs' Education & Training Standards Comm 
Cecil W Duke. Jr v Criminal Justice Education & Training Stds Comm 
Amado Martinez v. Criminal Justice Education & Training Stds Comm 
Johnny, Wayne Wills v. Criminal Justice Education & Training Stds Comm 
James E Ellerbe v. Sheriffs' Education & Training Standards Comm 
Paul Harve\ Taylor v. DOJ. Criminal Justice Ed & Training Stds Comm 
Kenneth Joseph Jackson v. Sheriffs' Education & Training Standards Comm 
Robert Ryan Hardison v Sheriffs' Education & Training Standards Comm 
Tracey Jerome Clark v. Sheriffs' Education & Training Standards Comm 
Kevin Lamar Dorsey v Sheriffs' Education & Training Standards Comm 
Willoughby McCormick. Jr v Sheriffs' Ed & Training Standards Comm 

Private Protective Services Board 

Claims Verification, lnc \ Private Protective Sen. ices Board 
Walter R Shirerv. Private Protective Sen ices Board 
Stacey L Williams v Private Protective Sen-ices Board 
Eugene Norman Garrett \ Private Protective Sen ices Board 
Danny Charles Garrett v Private Protective Senices Board 
Alfred D Malson v. Private Protective Senices Board 
Meh in Eugene Da\ is v. Private Protective Sen ices Board 



CASE 




DATE OF 


M MBER 


ALJ 


DECISION 


98 CSE 0569 


Morrison 


08/06/98 


98CSE0578 


Gray 


10/08/98 


98 CSE 0607 


Smith 


06/22/98 


98 CSE 0653 


Mann 


08/26/98 


98 CSE 0658 


Phipps 


08/31/98 


98 CSE 0682 


Smith 


06/22/98 


98 CSE 0689 


Owens 


09/18/98 


98 CSE 0691 


Owens 


10/09/98 


98 CSE 0728 


Smith 


09/17/98 


98 CSE 0769 


Becton 


07/30/98 


98 CSE 0783 


Chess 


09/08/98 


98 CSE 0817 


Mann 


09/08/98 


98 CSE 0818 


Morrison 


09/15/98 


98 CSE 0833 


Owens 


07/29/98 


98 CSE 0867 


Phipps 


07/20/98 


98 CSE 0869 


Reilly 


08/06/98 


98 CSE 0894 


Smith 


08/20/98 


98 CSE 0949 


Smith 


09/08/98 


98 CSE 0975 


Chess 


09/01/98 


98 CSE 1036 


Morrison 


09/15/98 


98 CSE 1052 


Morrison 


10/09/98 


98 CSE 1095 


ReilK 


10/06/98 


96 DCS 2105 


Gray 


07/08/98 


97 DCS 0251 


Phipps 


08/31/98 


97 DCS 1219 


Smith 


07/29/98 


97 DCS 1486 


Morrison 


06/22/98 


97 DCS 1574 


Gray 


08/04/98 


98 DCS 0468 


Morrison 


06/09/98 


98 DCS 0675 


Reilly 


07/15/98 


98DHR0219 


Reilly 


08/11/98 


98 DHR 0637 


Phipps 


07/02/98 


97 DOJ 1 368 


Phipps 


09/10/98 


98 DOJ 0871 


Morrison 


07/09/98 


97 DOJ 1236 


Phipps 


07/24/98 


97 DOJ 1319 


Phipps 


07/29/98 


97 DOJ 1578* s 


Gray 


08/20/98 


97 DOJ 1698 


Reilly 


06/12/98 


98 DOJ 0022 


Smith 


07/14/98 


98 DOJ 0121 


Smith 


06/22/98 


98 DOJ 0147 


Smith 


07/16/98 


98 DOJ 0388 


Reilly 


07/24/98 


98 DOJ 0430 


Gray 


07/21/98 


98 DOJ 0431 


Gray 


08/21/98 


98 DOJ 0432 


Becton 


06/08/98 


98 DOJ 0479 


Chess 


10/07/98 


98 DOJ 0526 


Morrison 


09/09/98 


98 DOJ 0574 


Chess 


07/30/98 


98 DOJ 0600 


Morrison 


08/07/98 


98 DOJ 0841 


Phipps 


09/1 6/98 


98 DOJ 0847** 


Gray 


08/20/98 


98 DOJ 0878 


Phipps 


09/08/98 


98 DOJ 0879 


Owens 


08/31/98 


98 DOJ 0930 


Phipps 


09/22/98 


98 DOJ 1007 


Reilly 


10/13/98 


98 DOJ 0848 


Smith 


08/04/98 


98 DOJ 0937 


Morrison 


09/17/98 


98 DOJ 0938 


Morrison 


08/18/98 


98 DOJ 0939 


Morrison 


08/18/98 


98 DOJ 1081 


Morrison 


09/17/98 


98 DOJ 1141 


Morrison 


09/29/98 


98 DOJ 1145 


Morrison 


09/22/98 



PUBLISHED DECISION 
REGISTER CITATION 



13:9 



NORTH CAROLINA REGISTER 



November 2, 1998 



793 



CONTESTED CASE DECISIONS 



V(.l N< > 

BOARD OK MEDICAL EXAMINERS 

Joe D Crawford. M D v. Medical Bd of NC Bd of Medical Examiners 

PI BLIC INSTRUCTION 

George & Ruth Sinclair for Adam Sinclair v. Wake Count} Schools 

(Special Education Services) 
Nicholas Eirschele. By and Throught His Parents. Charles & Kathleen 

Eirschele v Craven County Board of Education 
Gene Edward Lloyd v Department of Public Instruction 
Mrs Phyllis Y Moore v. Cumberland County Schools 
Laney Bruce Harrill v State Board of Education 

LK on behalf of her son. J H . as well as on her own behalf v St Bd /Ed 
Joseph J Sarrerro v Department of Public Instruction 
M E and her husband. P.E., individually, and on behalf of their son. C E 

v Bd of Ed for Buncombe Ct\ a'k/a Buncombe Ct\ Public Schools, et al 



CASE 




NUMBER 


ALJ 


98 BME 0870 


Owens 


97EDC 1233 


Phipps 


97EDC 1234 


Phipps 


98EDC0110 


Reillv 


98 EDC 0305 


Grav 


98 EDC 0350 


Smith 


98 EDC 0370 


Smith 


98 EDC 0459 


Owens 


98 EDC 0566 


Grav 



DATE OF 
DECISION 



07/30/98 



08/11/98 

07/16/98 

09/10/98 
08/05/98 
09/17/98 
10/14/98 
08/10/98 
10/01/98 



PUBLISHED DECISION 
REGISTER CITATION 



♦ 



STATE PERSONNEL 



Department of Correction 

Terry T Rees v Department of Correction 

Mohammad H Baloch. M D v Department of Correction 

Leon Owens v Department of Correction 

fern, 1 Rees v. Department of Correction 

Michael A Smith v Department of Correction 

Michael A Smith v Department of Correction 

Jayne D Bledsoe v Correction. Di\ of Adult Probation & Parole 

Carl W Craven. II v. Pender Correctional Institution 

Emn Shaw v. Martin Horner. Asst Super. Corr .. Sandy Ridge Corr Ctr 

Joseph S/.ilagyi v Department of Correction 

Dennis S Harrell v Dept of Correction. Caledonia Correctional Institute 

Tommy L Hancock v Department of Correction 

Tommy L Hancocks Department of Correction 

Bertha Darden v Raymond Smith & Dept of Correction. Central Prison 

Ruth Moseley v Department of Correction 

Lamont M Burt \ Department of Correction 

Crime Control and Public Safety 

Roger D Davis v, Crime Control & Public Safety, St Hwy Patrol 
Albert R Little v Crime Control & Public Safety. Info Sys Specialists 
Thomas E Carlton \ Crime Control & Public Safety. St Hwy Patrol 

Employment Security Commission 

Jane B Bolm and Arlene G Sellers v Employment Secuntv Commission 

Jane B Bolm and Arlene G Sellers v. Employment Security Commission 

Environment and Natural Resources 

Charles Anthony Bruce v. ENR. Division of Parks and Recreation 

Health and Human Services 

Annette Honeav Department of Human Resources 

Angela M Miles v Cumberland County Department of Social Services 

Sluing Fung-Chin v Department of Human Resources. Caswell Center 

Charity Swick \ Cumberland County Department of Social Services 

Yolandra Best and Roy Hudson v DHHS. John Umstead Hospital 

Yolandra Best and Rov Hudson v DHHS. John Umstead Hospital 

Fred Foster. .lr v Department of Health and Human Services 

Shung Fung-Chin v Department of Human Resources. Caswell Center 

Ruth Holrovd v. Montgomery Ctv DSS. Children's Services 

Fred Foster, .lr v Department of Health and Human Services 

James W Crews v DHHS. Murdoch Center 

Patricia R Quick \ DHHS. Dorothea Dix Hospital 

Angela M Miles v Cumberland County Department of Social Services 

Delores Laverne Rich \ Health & Human Services. Dorothea Di\ Hosp 

Fred Foster. Jr v Department of Health and Human Services 

David A Kilpatrick v Health & Human Services. Caswell Center 

Fred Foster. Jr v Department of Health and Human Services 

Laura Blanton v Cleveland Center 

Anthony M Ruiz \ Department of Health & Human S\cs. Youth Svcs 

Rudolph Waters v DHHS. Youth Sen ices. Dobbs School 

Euwell Falconer v Karen A Andrews. Gaston-Lincoln Area Mental Health 



97 0SP 1671» J 


Smith 


98OSP0014 


Grav 


98OSP0050 


Becton 


98 OSP 01 19*' 


Smith 


98 OSP 0231*" 


Reillv 


98OSP0317* 9 


Reillv 


98 OSP 0543 


Owens 


98 OSP 0633 


Smith 


98 OSP 0671 


Phipps 


98 OSP 0757 


Owens 


98 OSP 0846 


Morrison 


98 OSP 0881 


Owens 


98 OSP 0882 


Owens 


98 OSP 0905 


Smith 


98 OSP 1092 


Grav 


98 OSP 1115 


Smith 


97 OSP 061 7 


Chess 


97 OSP 1157 


Morrison 


98 OSP 0919 


Phipps 


97 OSP 1122' 


Chess 


97 OSP 1134* ; 


Chess 


98 OSP 0240 


Reillv 


96 OSP 0833 


Chess 


97 OSP 0613*' 


Grav 


97 OSP 0638*'" 


Chess 


97 OSP 0775 


Grav 


97 OSP 0862*" 


Chess 


97 OSP 0863*" 


Chess 


97 OSP 1287* ,: 


Smith 


97 OSP 1530*"' 


Chess 


97 OSP 1586 


Smith 


97 OSP 1701 * n 


Smith 


98 OSP 0060 


Grav 


98 OSP 0061 


Becton 


98 OSP 0084*' 


Grav 


98 OSP 0120 


Grav 


98OSP0187*' : 


Smith 


98 OSP 0271 


Owens 


98 OSP 0403* l: 


Smith 


98 OSP 0453 


Smith 


98 OSP 0454 


Grav 


98 OSP 0474 


Morrison 


98 OSP 0538 


Reilh 



06/30/98 
09/01/98 
07/10/98 
06/30/98 
08/11/98 
08/11/98 
07/29/98 
06/25/98 
10/09/98 
10/05/98 
09/08/98 
08/04/98 
10/09/98 
09/25/98 
1 0/07/98 
10/06/98 



05/27/98 
07/22/98 
09/24/98 



06/02/98 
06/02/98 



lit, US! wx 



08/24/98 
07/10/98 
08/13/98 
07/10/98 
08/13/98 
08/13/98 
08/20/98 
08/13/98 
05/27/98 
08/20/98 
07/20/98 
07/16/98 
07/10/98 
07/08/98 
08/20/98 
08/13/98 
OS/20/98 
10/02/98 
06/04/98 
07/30/98 
nxn„ ws 



• 



13 02 NCR 257 



Consolidated Cases. 



794 



NORTH CAROLINA REGISTER 



November 2, 1998 



13:9 



CONTESTED CASE DECISIONS 



AGENCY 

Jeffrey L Williams v Dorothea Dix Hospital 

Barbara Jean Paquette v Durham County (respondeat superior for the 

Durham County Public Library) 
Derrick Skinner v Health & Human Services. Cherry Hospital 

Department of Justice 

Linda Margaret Koss v. State Bureau of Investigation 

Department of Public Instruction 

Lilhe Bumette Pearsall v. Wayne Cry Bd. of Ed . Mrs. Veda McNair and 
Mr Steve Tavlor 



CASE 




DATE OF 


NUMBER 


AU 


DECISION 


98 OSP 0595 


Becton 


07/22/98 


98 OSP 0765 


Morrison 


08/05/98 


98 OSP 1035 


Gray- 


09/21/98 


97 OSP 0189 


Chess 


08/14/98 


98 OSP 0944 


Smith 


08/25/98 



PI BLISHED DECISION 
REGISTER CITATION 



Secretary of State 

Jonathan M Demers v. Department of Secretary of State 

Department of Transportation 

Johnny O Shivar \ Department of Transportation 

Larry W. Davis v. Department of Transportation 

Sherry Lynn Noles v Department of Transportation-NCDMV 

Clarice Goodwin Arthur v. Department of Transportation. Ferries Division 

University of North Carolina 

Douglas Love. Jr \ LINC Hospitals 

Deborah J Fenner v NC Central University 

Joyce M Smith v North Carolina Central University 

Edwin Swain v. University of North Carolina at Chapel Hill 

Patricia A G. Roberts V Asst /Chan /Qty Mgmt.TJir Human Res UNCW 

Leo Watford. Roosevelt Pams. Claiborne Baker, et al v University of 

North Carolina at Chapel Hill 
Johnny Johnson. Jr v. A & T St. University Student Union-Grievance Bd 
Jessie L Johnson v. Bernard K. Locklear. UNC at Pembroke 
Jonathan L Fann v North Carolina State University Physical Plant 
Greta M Hawthorne v University of NC at Pembroke 
Robert W. Bnnson v. NC State University 
Alberta A lngram-Peterson v. NC Central LInisersity 

STATE TREASURER 

Hugh A Wells v Consolidated Judicial Retirement System of NC. 
Bd. of Trustees Teachers and State Emplosees' Retirement System 



97 OSP 1018 


Becton 


07/07/98 


13:03 NCR 343 


97 OSP 1366 


Reillv 


09/01/98 




98 OSP 0241 


Gra\ 


07/08/98 




98 OSP 0269 


Chess 


08/11/98 




98 OSP 0864 


Phipps 


09/24/98 




97 OSP 0662 


Reillv 


06/08/98 




97 OSP 0902 


Chess 


05/29/98 




97 OSP 1297 


Smith 


06/25/98 




97 OSP 1694 


Morrison 


07/31/98 




98 OSP 01 78 


Phipps 


10/08/98 




98 OSP 0254 


Chess 


07/17/98 




98 OSP 0299 


Owens 


09/02/98 




98 OSP 0444 


Gra\ 


09/29/98 




98 OSP 0465 


Becton 


07/17/98 




98 OSP 0831 


Chess 


09/11/98 




98 OSP 0887 


Owens 


08/1 0/98 




98 OSP 1024 


Smith 


10/14/98 




98DST0316 


Morrison 


06/05/98 


13 01 NCR 166 



TRANSPORTATION 

David Warren Dew et al 



v. Motor Vehicles. Alexander Killens Comm 



UNIVERSITY OF NORTH CAROLINA 

Patricia D Hall v University of North Carolina at Chapel Hi 
Ladonna P James \ UNC Hospitals 



95 DOT 1144 


Gray 


06/04/98 


98 UNC 0397 


Reilh 


08/20/98 


98 UNC 0591 


Becton 


07/20/98 



13:9 



NORTH CAROLINA REGISTER 



November 2, 1998 



795 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF BRUNSWICK 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

98EHR0322 



I 



GERALD MOORE, et. al.. 
Petitioner, 

\. 

N.C. DEPARTMENT OF ENVIRONMENT AND NATURAL 
RESOURCES, DIVISION OF MARINE FISHERIES, 

Respondent. 




On Jul)' 22, 1998, Administrative Law Judge Melissa C. Owens heard this case in New Bern. North Carolina. This 
contested case arises from a petition to appeal Respondent's Notice of Intent to Issue two shellfish leases to Julian Gilgo in the 
Newport River, Carteret County. On September 16. 1998. Respondent submitted a proposed Recommended Decision. On 
September 23, 1998, Petitioner submitted a proposed Recommended Decision. 



For the Petitioners: 



For the Respondent: 



APPEARANCES 

Hugh C. Talton, Jr., Esq. 

P.O^ Box 689 

Beaufort, N.C. 28516-0689 

George K.. Hurst. Esq. 
Assistant Attorney General 
N.C. Department of Justice 
P.O. Box 629 
Raleigh. N.C. 27602-0629 

ISSUE 

Whether Respondent substantially prejudiced Petitioners" rights thereby exceeding its authority or jurisdiction, acted 
erroneously, acted arbitrarily or capriciously, or failed to act as required by law or rule by publishing a Notice of Intent to grant 
shellfish leases numbers 9708 and 9709 to Julian Gilgo? 

BURDEN OF PROOF 

Petitioner has the burden of proving by the preponderance of evidence that the Respondent acted erroneously, arbitrarily 
and capriciously, failed to act as required by law, and exceeded its authority when it issued a Notice of Intent to grant leases 9708 
and 9709 to Julian Gilgo. 

FINDINGS OF FACT 

L STIPULATED FACTS 

1 . Both parties stipulated to the authenticity and admissibility of Respondents Exhibit No. 1 . 

2. Both parties stipulated to the testimony of Charles Jones, the Deputy Director of CAMA. that the Division of Marine 
Fisheries does not as a matter of practice contact CAMA on [shellfish] leases, and to his knowledge there have been few contacts 
about the unsuitability of materials in leases in the past five years and that the issuance of shellfish leases is not within the 
jurisdiction of CAMA. 



• 



796 



NORTH CAROLINA REGISTER 



November 2, I99H 



13:9 



CONTESTED CASE DECISIONS 



1L ADJUDICATED FACTS 

Based upon the competent evidence admitted at the hearing and an assessment of the credibility of the witnesses, the undersigned 
makes the following: 

1. The Office of Administrative Hearings has personal and subject matter jurisdiction of this contested case pursuant to 
Chapters 1 13 and 150B (Article 3) of the North Carolina General Statutes. 

2. Judicial notice is taken of the fact that one acre contains 43.560 square feet. 

3. Shellfish cultivation is a traditional use of public trust waters in North Carolina. 

A, BACKGROUND FACTS 

4. The Petitioners are Carteret County residents and third party owners of property in the Deerfield Estates subdivision of 
Carteret County who oppose the location of proposed leases 9708 and 9709. 

5. The Respondent, Division of Marine Fisheries (hereinafter DMF). is an agency of the State of North Carolina. 

6. The applicant, Julian Gilgo (hereinafter Gilgo). is a resident of Morehead City. Carteret County, North Carolina. 

7. On October 17, 1997, Julian Gilgo submitted two applications to Respondent for shellfish bottom leases numbers 9708 
and 9709 (hereinafter 9708 & 9709). Gilgo submitted the two applications, each with its own management plan and map. When 
Gilgo applied for these proposed leases, he did not know the entire acreage of both leases since they had not yet been surveyed. 

8. Proposed lease 9708 is approximately 4 acres and is located just south of Russell Creek in the Newport River in Carteret 
County. Proposed lease 9708 is adjacent to an existent shellfish lease, lease number 791, and is separated from shore by that 
lease. See Petitioner's Exhibit Number 4. 

9. Proposed lease 9709 is approximately 3.5 acres and is located just north of Russell Creek in the Newport River in 
Carteret County The proposed location of lease 9709 is located approximately 100 feet from the edge of a marsh. Such marsh is 
approximately 100 feet wide and borders the shoreline of Deerfield Shores and Windy Pointe subdivisions. 

Lease 9709 is located between the Ward King lease (lease 9522) to the North and the Steven Boone lease (lease 725-A) 
to the south. Lease 9709 is located 46 feet from the King lease and 25 feet from the Steven Boone lease. See Petitioner's Exhibit 
Number 

10. Mr. Ward King is one of the petitioners in this case. 

11. Gilgo owns and operates a clam hatchery in Morehead City. North Carolina that produces seed clams. Gilgo's clam 
hatchery has the capacity to produce about 30 million clams per year in the hatching stage and the larva stage. Gilgo's hatchery 
can produce approximately 6-7 million seed clams in a summer for planting. Gilgo's operation is one of the largest clam 
aquaculture operations in North Carolina. 

12. Gilgo currently has three existing shellfish leases totaling 4.27 acres. With the addition of the two proposed leases, the 
total leased acreage for Mr. Gilgo's leases would be approximately 1 1.77 acres. 

13. Mr. Gilgo's aquaculture of clams is used and will be used in planting his shellfish leases. He has sold clams to other 
individuals on a limited basis, but not as a routine practice. 

14. 15A NCAC 30 .0203(a) provides that "Upon acceptance of a completed application, the proposed lease area shall be 
inspected within a reasonable time b\ the agents of the Division." 

15. Mike Marshall. Section Chief of the Resource Enhancement Program for Respondent, directed the overall investigation 
into leases 9708 and 9709. Pursuant to 15A NCAC 30 .0203(a) and Marshall's request. Respondent's personnel of biologists, 
shellfish sanitation personnel, and marine patrol or law enforcement officers conducted investigations of proposed leases 9708 and 
9709. In evaluating shellfish lease applications. Respondent DMF relies on the expert opinions of these personnel who work and 
have experience in each of these specific areas. 



13:9 NORTH CAROLINA REGISTER November 2, 1998 797 



CONTESTED CASE DECISIONS 



16. On December 9. 1997, Marshall, requested more detailed information from Gilgo justifying the need for more than 5 
acres of shellfish bottom. Mr. Marshall was concerned that since the two applications were submitted simultaneously and in the 
same area of water, it could be construed that the two applications were one, thus exceeding the maximum 5 acre requirement in 
15ANCAC 30.0201 (a)(1)(C). f 

17. By letter dated January 2. 1998. Gilgo advised Marshall that he needed more than five acres of shellfish bottom to plant 
2.3 million clam seed. Gilgo's leases 88 1 8 and 9003 had not been productive due to the water conditions in the creeks where they 
were located. Since Gilgo's hatchery operation was capable of producing 30 million larvae, and these other leases experienced 
poor productivity. Gilgo desired these leases to support that operation. 

18. On February 16. 1998. pursuant to N.C. Gen. Stat. § 1 13-202(0- the Respondent conducted a public hearing in Beaufort. 
North Carolina on both proposed leases 9708 and 9709. Testimony was received both in protest of the proposed leases and in 
support of the leases. Considering the comments at the public hearing, the information provided by Respondent's personnel, and 
his own experience and knowledge. Marshall concluded that both leases should be granted and recommended the Secretary of 
Environment and Natural Resources approve leases 9708 and 9709. 

19. Upon authority delegated by the Secretary of Environment and Natural Resource. Preston Pate. Director of DMF. 
reviewed the lease applications for 9708 and 9709. Pate determined these leases met the criteria for issuance and approved 
publishing the Notice of Intent to issue these leases. 

20. Neither lease has actuallv been issued. 

B, FACTS RELATING TO N. C. GEN. STAT. 1 13-202 CRITERION 

2 1 . NCGS 1 1 3-202(a) provides in pertinent part: 

To increase the use of suitable areas underlying coastal fishing Haters for the production of shellfish, the 
Secretary may grant shellfish cultivation leases to persons who reside in North Carolina under the terms of this section 
when the Secretary determines, in accordance with his duty to conserve the marine and estuarine resources of the State, * 
that the public interest will benefit from issuance of the lease. Suitable areas for the production of shellfish shall meet the w 
following minimum standards: 

( 1 ) The area leased must be suitable for the cultivation and harvesting of shellfish in commercial quantities. 

(2) The area leased must not contain a natural shellfish bed. 

22. The subject area of the Newport River. Carteret County has traditionally been a productive area for cultivating and 
harvesting shellfish. There are three existing shellfish leases in the immediate adjacent areas of the two proposed Gilgo leases. 
The Boone lease, lease 725-A. has existed since the 1950s. There are also numerous other shellfish leases located in the Newport 
River. 

23. On or about November 10. 1997. Jeffrey French, a biologist for Respondent, conducted an on-site investigation of both 
proposed lease locations. Mr. French and other biologists for the Respondent use a stratified sampling technique of dividing a 
proposed lease into sections and using a hand rake in each section to identify natural shellfish growth in that lease location. 

24. For lease 9709. French used this method to collect 62 samples spread over the entire lease, and located onlv one clam. 
For lease 9708. French used this method to collect 82 samples, also spread over the entire lease, and located 5 clams in four 
sections. All four sections were located immediately adjacent to another shellfish lease. 

No oysters were located in either lease site. With this data. French determined that neither lease would produce 10 
bushels per acre of natural clams and therefore neither was located on a natural shellfish bed. 

25. Pursuant to 15 NCAC 30 .0201(a)(2). to be commerciallv viable, a lease must produce 25 bushels of clams per acre per 
vear. 

26. Based upon Gilgo's proposed planting density, his on-site investigation, his personal knowledge of past investigations of 
the area, and his 21 years experience as a biologist working in the Newport River area. French concluded that both proposed lease 
sites 9708 and 9709 were suitable for the cultivation and harvesting of shellfish in commercial quantities. 



798 NORTH CAROLINA REGISTER November 2, 1998 13:9 



» 



CONTESTED CASE DECISIONS 



27. N. C. Gen. Stat. § 1 13-202(a)(3) requires that the cultivation of shellfish must be compatible with lawful utilization by 
the public of other marine and estuarine resources. These other public uses which may be considered include, but are not limited 
to, navigation, fishing and recreation. A lease may not be granted in an area of heavy recreational use. N. C. G. S. § 1 13-202(c). 

28. On or about October or November 1997, Marine Patrol officers investigated the compatibility of proposed leases 9708 
and 9709 with the public's navigational, fishing, and recreational interests in those areas of the Newport River. The two 
investigating Marine patrol officers have twenty-three years and five years experience, respectively, and have worked the Newport 
River area on a routine and regular basis. 

29. Based upon their experiences in working the Newport River area, these officers classify this area of the Newport River as 
one of light recreational use. 

30. Both Marine Patrol Officers opined that fishing, recreational uses, and navigation will not be unduly impacted by these 
leases. This is based on the fact that fishing, wading, boating, navigation and other uses are not only permitted, but physically 
possible on shellfish lease areas. 

3 1 . The Marine Patrol Officers also opined that use of the area for fishing, navigation, and recreational purposes is extremely 
limited due to the normal water depths in this area. 

32. Boating and navigation in this area is particularly restricted to times of high tide, including two hours before and two 
hours after high tide. During high tide, water depth averages no more than four to five feet; at low tide, water depth averages a 
few inches or less. 

33. The bottom of the Newport River in this general area in and around leases 9708 and 9709 is clean, firm, and sandy. 

34. Petitioner Glasgow's grandkids frequently play and swim in the waters in this general area during the summer. However, 
Mr. Glasgow's property is located approximately 500 feet from lease 9709. There are four lots between Mr. Glasgow's lot and 
Mr. King's lot. 

35. The general water area in and surrounding leases 9708 and 9709 is lightly used for recreational purposes such as 
swimming, wading, and fishing. Windsurfers, people with small sailboats and some jet skiers also use this general area of the 
river, including offshore. 

36. Ward King's lease does not hinder use of the water by windsurfers and jet skiers in this area. 

37. Over the last five years, as residential development increased in this area, recreational uses of this area such as swimming 
and wading also increased exponentially. Nevertheless, use of this general water area including the subject leases remains limited 
by the depth and tide of the water in this area. 

38. While the testimony of the Marine Patrol Officers conflicts with that of property owners in the area, their experience in 
the area supports their credible testimony that the proposed leases are compatible with other public uses. 

39. The area subject to leases 9708 and 9709 are lightly used for recreational purposes. 

40. N.C. Gen. Stat. § 1 130-202(a)(4) requires that "Cultivation of shellfish in the leased area will not impinge upon the rights 
of riparian owners." 

41. "Riparian owner' means the holder(s) of the fee title to land that is bordered by waters of an arm of the sea or any other 
navigable body of water." N.C. Gen. Stat. § 113-201.1(2). 

42. Lease 9708 is separated from the shoreline by another lease, lease 791. No one who owns property along the shoreline 
adjacent to lease 791 and proposed lease 9708 is a petitioner in this case. 

43. Petitioners did not present any evidence that their riparian rights were impinged by lease 9708. 

44. As to lease 9709, Petitioner Gordon admits lease 9709 would not impact his ability to put a pier in or access the water in 
front of his property. Petitioner King admits he has no problem accessing his property by boat during high tide. Petitioners also 
admit that they can not access their property by boat during low tide due to the lack of water depth in this area. 



13:9 NORTH CAROLINA REGISTER November 2, 1998 799 



CONTESTED CASE DECISIONS 



45. Petitioner Moore's properties are immediately adjacent to lease 9709. His property are currently undeveloped. Mr. 
Moore acknowledges that while he used to boat in this area, he has not used his boat in the past couple of years. Petitioner 
Glasglow also no longer boats in this area because he has sold his boat. 

I 

46. Lease 9709 is located more than 100 feet from the shoreline. In addition, navigation buffers of approximately 25 to 46 
feet have been allocated on each side of lease 9709 to allow access to adjacent waters including the channel and intercoastal 
waterway. 

47. Except during periods of low tide, and but for large vessels which cannot navigate in this area due to the low water depth, 
navigation is possible over lease 9709. 

48. The biggest limitation to navigability on these leased areas and the surrounding water areas is the normal water depth and 
tide of the area. 

49. The leased area of 9709 and 9708 are not designated as shellfish management areas and are not closed due to pollution. 
N.C. Gen. Stat. § 1 13-202(a)(5) & (6). 

50. The clam kicking line is the line on which mechanical harvesters of clams may operate. The clam kicking line does not 
cross proposed leases 9708 and 9709. All testimony, from the individuals who actually set the line and others who work the line, 
was that the line never crossed the areas of proposed leases 9708 and 9709 and that neither lease interferes with the clam kicking 
line. No one testified that the clam kicking line currently or ever existed in the areas of proposed leases 9708 and 9709. 

CONCLUSIONS OF LAW 

Based upon the foregoing Findings of Fact, the undersigned makes the following: 

1 . All parties are properly before the Office of Administrative Hea. ngs, and the Office has jurisdiction over the parties and 
the subject matter. 

2. All parties are correctly designated, and there is no question as to misjoinder or nonjoinder. J 

3. Pursuant to N. C. Gen. Stat. § 1 13-201. the Marine Fisheries Commission is empowered to make rules and take all steps 
necessary to develop and improve the cultivation, har\esting. and marketing of shellfish in North Carolina both from public 
grounds and private beds. 

4. A shellfish lease may be granted when it meets the requirements enumerated in N. C. Gen. Stat. § 113-202 and the 
additional standards of suitability listed in 1 5 A NC AC 30 .020 1 . 

5. By 15A NCAC 30 .0203(a). the Marine Fisheries Commission specifically authorizes the agents of the Division of 
Marine Fisheries to inspect the proposed lease area of a completed shellfish lease application. B\ such delegation, the 
Commission insinuates that it relies upon its agents and their work experiences to properly inspect a shellfish lease application and 
determine if such application meets the criteria in N. C. Gen. Stat. § 1 13-202 and the standards in 15A NCAC 30 .0201. 

6. The statutory requirements of N.C. Gen. Stat. § 113-202. the additional standards of 15A NCAC 30 .0201. and the 
authority of Respondent's agents to inspect in 15A NCAC 3 O .0203(a). all provide adequate objective criteria for the Respondent 
to determine whether to grant a shellfish lease. 

7. Respondent and its agents conducted thorough investigations of proposed leases 9708 and 9709 and correctly concluded 
that these lease applications meet the criteria of 

N.C. Gen. Stat. § 1 1 3-202 and 1 5A NCAC 30 .020 1 . 

8. Gilgo's shellfish bottom lease applications 9708 and 9709 meet all the criteria of N.C. Gen. Stat. § 113-202 and 15A 
NCAC 30.020 1. 

9. Cultivation of shellfish must be compatible with lawful utilization by the public of other marine and estuarine resources. * 
These other public uses, which may be considered, include but are not limited to navigation, fishing and recreation. N. C. Gen. ▼ 
Stat. § 1 13-202(a)(3). A lease may not be granted in an area of heavy recreational use. N.C.G.S. § 1 13-202(b). 



800 NORTH CAROLINA REGISTER November 2, 1998 13:9 



CONTESTED CASE DECISIONS 



10. Petitioners did not produce substantial evidence and did not prove by a preponderance of the evidence that leases 9708 
and 9709 will not be compatible with other uses. N. C. Gen. Stat. § 1 13-202(a)(3). While Petitioner produced some evidence that 
light recreational uses may occur in the area of lease 9709, a preponderance of the evidence showed that: 

( 1 ) neither lease was in a area of heavy recreational use; 

(2) the low water depths, in these locations, and not the presence of shellfish leases precluded much recreational 
activity for a significant period of the day; 

(3) fishing, recreational uses, and navigation would not be unduly impacted by these leases; and 

(4) the presence of these leases was compatible with lawful utilization by the public of other marine and estuarine 
resources. 

11. Cultivation of shellfish in these leases will not impinge upon the rights of riparian owners. N.C. Gen. Stat. § 113- 
202(a)(4). Riparian rights include the following appurtenant rights to property adjacent to public waters; 

1 . The right to be and remain a riparian proprietor and to enjoy the natural advantage thereby conferred upon the 
land by its adjacency to the water. 

2. The right of access to the water, including a right of way to and from the navigable parts. 

3. The right to build a pier or wharf out to the navigable water, subject to any regulations by the State. 

4. The right to accretions or alluvium. 

5. To make reasonable use of the water as it flows past or laves the shore. 

in the Matter of Mason Ex ReJ Huber . 78 N.C. App. 1 6. 337 S.E.2d 99, 1 04 (1985) citing Shepard's Point Land Co. ys, Atlantic 
Hotel. 132 N.C. 517, 536. 44 S.E. 39. 46 (1903). 

12. Petitioners did not produce any evidence that and therefore have not proven that their riparian rights will be impinged or 
limited by lease 9708. 

13. As to lease 9709. Petitioner did not present substantial evidence that their riparian rights will be impinged by lease 9709. 
Instead, a preponderance of evidence shows that Petitioners have free riparian access to adjacent waters through the 25 foot and 
46 foot passageways on each side of lease 9709 and because lease 9709 is located more than 100 feet from the shoreline. As 
navigation is possible over lease 9709. except during periods of low tide. Petitioners have free riparian access to the adjacent 
waters and reasonable use of the water over this lease. As a result, Petitioners' riparian rights to make reasonable use of the 
waters, to build a pier, to have access to navigable waters, and to enjoy the natural advantage of being riparian owners will not be 
impinged by lease 9709. 

14. 15A NCAC 30.0201 (1)(C) limits the size of any one shellfish lease to 5 acres for clam culture unless an applicant can 
affirmatively establish the necessity for more than 5 acres. Since Gilgo applied for two separate leases that are not immediately 
adjacent to each other and neither lease exceeds 5 acres. 15A NCAC 30.0201 (1)(C) is not violated. 

15. Petitioners have not met their burden of showing that the Respondent substantially prejudiced Petitioners" rights thereby 
exceeding its authority or jurisdiction, acted erroneously, acted arbitrarily or capriciously, or failed to act as required by law or 
rule. 

16. Respondent's decision to grant shellfish leases 9708 and 9709 to Julian Gilgo in the Newport River was proper. 
Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned makes the following: 

RECOMMENDED DECISION 

The Secretary of the Department of Environment and Natural Resources affirm the Division of Marine Fisheries" 
decision to grant shellfish leases 9708 and 9709 to Julian Gilgo in the Newport River. 



13:9 NORTH CAROLINA REGISTER November 2, 1998 801 



CONTESTED CASE DECISIONS 



ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings. P.O. 
Drawer 27447. Raleigh. North Carolina 2761 1-7447. in accordance with North Carolina General Statute § 150B-36(b). ■ 

NOTICE 

The agency making the final decision in this contested case is required to give each party an opportunity to file exceptions 
to this recommended decision and to present written arguments to those in the agency who will make the final decision. N.C.G.S. 
§ 150B-36(a). 

The agency is required b\ N.C.G.S. § 150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy 
to the parties' attorneys of record and to the Office of Administrative Hearings. 

The agenc\ that will make the final decision in this case is the Department of Environment and Natural Resources. 

This the 8th da\ of October. 1998. 



Melissa C. Owens 
Administrative Law Jud«e 



♦ 



802 



NORTH CAROLINA REGISTER 



November 2, 1998 



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UNITED STATES 
POSTAL SERVICEr 



Statement of Ownership, Management, and Circulation 

(Required by 39 U.S.C. 3685) 



1. Publication Title 


2. Publication No. 


3. Filing Date 


Nor-th Carolina- T3e.cj isles 







1 


(o 


- 




Ill 


lo-az-qi 


4. Issue Frequency / 

-juoicc CX mem-i-h 


5. No. of Issues Published 
Annually 


6. Annual Subscription Price 

4 /9S" 



7. Complete Mailing Address of Known Office of Publication (Street, City, County, State, and ZIP+A) (Not Printer) 

OfficLof fl-drniniZ-hoJn've Hear, nab j^Ru/es L^vis'icn^ 

4a4 N 13/auni-^ , Ta/^A , 7XL 31GQ / 

8. Complete Mailing Address of Headquarters or General Business Office of Publisher (Not Printer) 

J$0.ryyt2- a^ tf ~I 

9. Full Names and Complete Mailing Addresses of Publisher, Editor, and Managing Editor (Do Not Leave Blank) 

Publisher (Name and Complete Mailing Address) . 

Office O-F Adnn< n't3-rro~h'(L Heo-r^nCj^ 

V^?V N -Blount ^T- J Ha/e.i^ / TiCy^l^o / 

Editor (Name and Complete Mailing Address) 

Dttn'ce, of fidrr\ini'bbr&-h'\/e~ /(/£^,'oq5 



Managing Editor (Name and Complete Mailing Address) 



1 0. Owner (If owned by a corporation, its name and address must be stated and also immediately thereafter the names and addresses of stockholders owning 
or holding 1 percent or more of the total amount of stock. If not owned by a corporation, the names and addresses of the individual owners must be given. If 
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by a nonprofit organization, its name and address must be stated.) (Do Not Leave Blank.) 


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J 1 












1 1 . Known Bondholders, Mortgagees, and Other Security Holders Owning or Holding 1 Percent or More of Total Amount of Bonds, Mortgages, or Other 
Securities. If none, check here. □ None 


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12. For completion by nonprofit organizations authorized to mail at special rates. The purpose, function, and nonprofit status of this organization and the exempt 
status for federal income tax purposes: (Check one) q Has Not changed During Preceding 1 2 Months 

□ Has Changed During Preceding 12 Months 

(If changed, publisher must submit explanation of change with this statement) 



PS Form 3526, October 1994 



(See Instructions on Reverse) 



13. Publication Name 

Nor-th Carolina He.ai<>-f-er 


14. Issue Date for Circulation Data Below 


15. 1 
Extent and Nature of Circulation 


Average No. Copies Each Issue 
During Preceding 12 Months 


Actual No. Copies of Single Issue 
Published Nearest to Filing Date 


a. Total No. Copies (Net Press Run) 


S3 


if 30 


b. Paid and/or Requested Circulation 

(1) Sales Through Dealers and Carriers, Street Vendors, and Counter Sales 
(Not Mailed) 


O 





(2) Paid or Requested Mail Subscriptions 

(Include Advertisers' Proof Copies/Exchange Copies) 


So^ 


So^ 


c. Total Paid and/or Requested Circulation 
(Sum of 15b(1) and 15b(2)) 


foS 


^o<^ 


d. Free Distribution by Mail 

(Samples, Complimentary, and Other Free) 





o 


e. Free Distribution Outside the Mail (Carriers or Other Means) 





o 


f. Total Free Distribution (Sum of 15d and 15e) 





o 


g. Total Distribution (Sum of 15c and 15f) 


5~£S~~ 


SoS' 


h. Copies Not Distributed 

(1) Office Use, Leftovers, Spoiled 


ptT 


£^ 


(2) Return from News Agents 








i. Total (Sum of 1Sg, 15h(1), and 15h(2» 


if So 


6~30 


Percent Paid and/or Requested Circulation 
(1Sc/1SgxW0) 


/DoVo 


100% 


16. This Statement of Ownership will be printed in the ' '~ 03 ~ y o issue of this publication. 


□ Check box 


if not required to publish. 


17. Signature and Title of Editor, Publisher, Eusmess Manager, or Owner 


Date 


I certify that all informatiorvturnished on this form is true and complete. I understand that anyone who furnishes false or m 
who omits matenal or information requested on the form may be subject to cnminal sanctions (including fines and impriso 
(including multiple damages and civil penalties). 


isleading information on this form or 
nment) and'or civil sanctions 



< 



Instructions to Publishers 

1. Complete and file one copy of this form with your postmaster on or before October 1, annually. Keep a copy of the completed form for 
your records. 

2. Include in items 1 and 1 1 , in cases where the stockholder or security holder is a trustee, the name of the person or corporation for whom 
the trustee is acting. Also include the names and addresses of individuals who are stockholders who own or hold 1 percent or more of the 
total amount of bonds, mortgages, or other securities of the publishing corporation. In item 1 1 , if none, check box. Use blank sheets if 
more space is required. 

3. Be sure to furnish all information called for in item 15, regarding circulation. Free circulation must be shown in items 15d, e, and f. 

4. If the publication had second-class authorization as a general or requester publication, this Statement of Ownership, Management, and 
Circulation must be published; it must be printed in any issue in October or the first pnnted issue after October, if the publication is not 
published during October. 

5. In item 16, indicate date of the issue in which this Statement of Ownership will be printed. 

6. Item 17 must be signed. 

Failure to file or publish a statement of ownership may lead to suspension of second-class authorization. 



♦ 



PS Form 3526, October 1994 (Reverse; 



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City 



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Stamp 

Here 



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